WING HANG BANK LTD v. RICHSUN INTERNATIONAL INVESTMENT LTD AND OTHERS

CACV 150/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 150 OF 2004

(ON APPEAL FROM HCMP NO. 52 OF 2002)

BETWEEN

	WING HANG BANK LIMITED	Plaintiff
	and
	RICHSUN INTERNATIONAL INVESTMENT LIMITED (裕豐國際投資有限公司)	1st Defendant
	CHENG WAI MING also known as CHENG WAI MING, JOHN	2nd Defendant
	CHENG LAU YUEN YEE（鄭婉儀） also known as LAU YUEN YEE	3rd Defendant
	LAW KIANG HOI KEN	4th Defendant
	LAW PO HING	5th Defendant
	LAW CHEUK LAM	6th Defendant
	LAW PO CHUN	7th Defendant
	LAW PO KING	8th Defendant
	LAW TIT KIN	9th Defendant
	YEARAN INVERSTMENTS LIMITED （裕豐投資有限公司）	10th Defendant

Before : Hon Cheung JA and Yeung JA in Court

Date of Hearing : 17 November 2005

Date of Judgment : 17 November 2005

 

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J U D G M E N T

___________________

Hon Cheung JA (giving judgment of the court) :

1. On 22 September 2005 we dismissed the 4^th defendant’s appeal against the order of Rogers VP in which the 4^th defendant was ordered to pay security for costs of his appeal in the sum of $200,000.  We granted the 4^th defendant an extension of 14 days to comply with the order.

2. The 4^th defendant now applies for leave to appeal to the Court of Final Appeal against our decision.

3. We will refuse the application as it does not fulfill the requirement of section 22(1) of the Hong Kong Court of Final Appeal Ordinance.  The 4^th defendant does not have a right of appeal because the order we made was an interlocutory one.  Further no issue of great general or public importance is involved and we do not see any evidence in support of the ‘or otherwise’ ground.  Accordingly, the application is dismissed with costs to the plaintiff.

4. The 4^th defendant has also issued a summons returnable today asking for a stay of execution of our order until the determination of his application for leave to appeal.  The application is now otiose.  We will dismiss the application with costs to the plaintiff.

 

 

(Peter Cheung) Justice of Appeal

(Wally Yeung) Justice of Appeal

 

Mr. Kenneth Chan, instructed by Messrs W. K. To & Co., for the plaintiff

4^th defendant, in person, present

 

CACV 150/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 150 OF 2004

(ON APPEAL FROM HCMP NO. 52 OF 2002)

______________________

BETWEEN

	WING HANG BANK LIMITED	Plaintiff
	and
	RICHSUN INTERNATIONAL INVESTMENT LIMITED (裕豐國際投資有限公司)	1st Defendant
	CHENG WAI MING also known as CHENG WAI MING, JOHN	2nd Defendant
	CHENG LAU YUEN YEE (鄭婉儀) also known as LAU YUEN YEE	3rd Defendant
	LAW KIANG HOI KEN	4th Defendant
	LAW PO HING	5th Defendant
	LAW CHEUK LAM	6th Defendant
	LAW PO CHUN	7th Defendant
	LAW PO KING	8th Defendant
	LAW TIT KIN	9th Defendant
	YEARAN INVESTMENTS LIMITED (裕豐投資有限公司)	10th Defendant

______________________

 

Before : Hon Cheung JA and Yeung JA in Court

Date of Hearing : 22 September 2005

Date of Judgment : 22 September 2005

Date of Reasons for Judgment : 26 September 2005

 

_______________________________

REASONS FOR JUDGMENT

_______________________________

 

Hon Cheung JA (giving the reasons for judgment of the court) :

1. On 22 September 2005 we dismissed the appeal by the 4^th defendant against the order of Rogers VP dated 13 June 2005 in which the 4^th defendant was ordered to pay security for costs of an appeal he lodged against the judgment of Yam J dated 7 April 2004.  Instead we allowed the 4^th defendant an extension of 14 days to comply with the order.  These are our reasons. 

2. The security was in the sum of HK$200,000 and the order of Rogers VP provided that the appeal would be dismissed in the event of the 4^th defendant failing to provide for the security.  Time for payment was initially 11 July 2005 but Rogers VP upon the 4^th defendant’s application had extended the time of payment twice to 11 August 2005 and 18 August 2005 respectively.  The 4^th defendant did not comply with these orders. 

3. In the course of the 4^th defendant’s arguments we pointed out to him that as the order of Rogers VP provided for the dismissal of the appeal in the event the security was not furnished, his appeal against Yam J’s judgment would stand dismissed in the event we dismissed his present appeal and that the only way he could pursue the appeal against Yam J’s judgment is to apply for an extension of time to comply with the order for security.  The 4^th defendant then chose to apply for an extension of time which was opposed by Mr. Chan, counsel for the plaintiff.  Upon hearing the parties we granted extension of time to the 4^th defendant.  We would have in any event dismissed his appeal against the order for security.

4. The court may on special circumstances order an appellant to provide security for costs.  This includes the situation when the appellant is shown to be impecunious and would be unable to pay for the respondent’s costs of the appeal in the event his appeal is dismissed. 

5. The respondent had adduced evidence that the 4^th defendant’s address in Hong Kong is one of the units of the property which is the subject matter of the action and of which Yam J had found that the 4^th defendant together with the other defendants had no interest therein.  The 4^th defendant had made repeated applications for legal aid which were refused and the 4^th defendant had failed to pay the taxed costs which he and the other defendants were ordered to pay to the plaintiff by Yam J. 

6. The 4^th defendant has not filed any affirmation in opposition to the application for security.  In the circumstances there is clearly sufficient material for the court to conclude that the 4^th defendant is impecunious and is unlikely to pay for the costs of his appeal in the event the appeal is dismissed. 

7. The 4^th defendant has not demonstrated that his chance of success of his appeal is so high that he ought not to be required to pay security even if he is impecunious.

8. However, as the 4^th defendant is appealing against Yam J’s judgment as of right, we considered that a further extension of time should be granted for him to comply with the order of Rogers VP.

9. We accordingly made the orders set out in paragraph 1 herein and further ordered the 4^th defendant to pay the plaintiff the costs of the present appeal.

 

 

(Peter Cheung) Justice of Appeal

(Wally Yeung) Justice of Appeal

 

Mr. Kenneth Chan, instructed by Messrs W. K. To & Co., for the plaintiff

4^th defendant, in person, present

 

Application by the 4th Defendant for leave to appeal to Court of Final Appeal dismissed by Court of Appeal. Please refer to CACV150/2004 dated 17 November 2005