CAI DENING AND ANOTHER v. CHANG CHEW YUNG AND ANOTHER

CACV001649A/2001

CACV 1649/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1649 OF 2001

(ON APPEAL FROM HCA 416 OF 1995)

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BETWEEN
	CAI DENING	1st Plaintiff
	CAI QIAN	2nd Plaintiff
	AND
	CHANG CHEW YUNG	1st Defendant
	LAU KAM FAI	2nd Defendant

______________

Coram: Hon Mayo VP and Yeung J in Court

Date of Hearing: 6 December 2001

Date of Judgment: 6 December 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal from the decision of Cheung JA to order that the sum of $180,000 be paid into court as security for costs in a forthcoming appeal. The Judge sitting as a single judge made the order on 15 November and ordered that the said sum be paid within 28 days failing which the appeal would stand dismissed.

2. The defendants accept that they are without the jurisdiction. This being the case an order for security for costs is normally appropriate to protect the interests of the respondent of the appeal.

3. It appears that the only ground being advanced in support of this appeal is a complaint that the appeal which the defendants are prosecuting against the determination made by the Director of Legal Aid to refuse to grant legal aid to them has not yet been determined. There is evidence that the defendants have made successive applications for legal aid in the past without success.

4. The defendants also assert that if this appeal is not allowed they will not have sufficient funds to proceed with their appeal. This is notwithstanding the fact that Kwan J ordered that $500,000 be paid out from the $1.7 million which the defendants paid into court so as to obtain a stay of the judgment which had been entered against them.

5. No affidavit has been forthcoming explaining what happened to the $500,000. As has been pointed out by Yeung J there would appear to be nothing for any discretion we may be disposed to exercise to bite upon.

6. This appeal is unmeritorious and is dismissed. Cheung JA's order must be complied with.

7. There will be no order so far as the application for the further $20,000 is concerned. That is not proceeded with.

8. Costs of appeal is to the plaintiff, to be taxed if not agreed.

(Simon Mayo)	(Wally Yeung)
Vice-President	Judge of the Court of First Instance

Representation:

Mr William Thomson, of Messrs Peter C. Wong, Chow & Chow, for the plaintiffs.

Mr Nigel Bedford, instructed by Messrs Chan, Wong & Lam, for the defendants.

CACV001649/2001

CACV 1649/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1649 OF 2001

(ON APPEAL FROM HIGH COURT ACTION NO. A416 OF 1995)

 

BETWEEN
	CAI DENING	1st Plaintiff
	CAI QIAN	2nd Plaintiff
	AND
	CHIANG CHEW YUNG	1st Defendant
	LAU KAM FAI	2nd Defendant

Coram : Hon Cheung JA in Chambers

Date of Hearing: 15 November 2001

Date of Judgment: 15 November 2001

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J U D G M E N T

______________________

1. This is an application for security for costs of the appeal by the Plaintiffs (Respondents) in this case. Chung J. had given judgment to the Plaintiffs against the Defendants for the sum of about HK$1.7 m. As against the 1st Defendant, US$5,880.00, HK$531,821.56, HK$562,600.00, HK$318,872.40, HK$3,857.00 in favour of the 1st Plaintiff and US$30,940.00 in favour of both of the Plaintiffs. The 2nd Defendant is required to pay HK$292,655.64 in favour of the 1st Plaintiff.

2. Both Defendants are also required to pay interest on the judgment sum at judgment rate from 13 January 1995 until payment and also costs on an indemnity basis. The estimated costs amounted to $2 m. The action was commenced in 1995 and the trial lasted for six days.

3. The Defendants are husband and wife. The 1st Defendant had paid into court HK$1.7 m. The Defendants have since July 1997 lived in the United States of America and have their properties in the United States of America. An injunction was granted in 1995 restraining the disposal of the assets in the accounts of the 1st Defendant and the joint account of the 1st Defendant and the Plaintiffs. In May 2000, the 1st Defendant applied to vary the injunction claiming to be poverty stricken and asked for the release of $500,000.00 on the frozen accounts for legal representation. This sum was released but the Defendants did not hire lawyers for the trial. There is no known assets of the Defendants in Hong Kong.

4. The money in court is clearly not enough to satisfy the judgment sum, interest and costs of the hearing below. The Plaintiffs have shown that the Defendants will not be able to meet the costs of the appeal if they fail in their appeal. The appeal is estimated to last two days. The estimated costs is $269,250.00

5. In my view the Defendants should pay into court $180,000.00 as security for the appeal. The payment is to be made within 28 days. Until such security is paid, the appeal will be stayed. In default of payment the appeal will be dismissed with costs of the appeal to be taxed and paid by the Defendants to the Plaintiffs. Costs of the application will be to the Plaintiffs.

	(Peter Cheung)
	Justice of Appeal

Representation:

Mr. William Thomson of M/s. Peter C. Wong, Chow & Chow for the Plaintiffs

Mr. Edward M.H. Chan of M/s. Chan, Wong & Lam for the 1st Defendant

2nd Defendant in person, absent