BANK OF CHINA (HONG KONG) LTD v. WENLOY LTD AND ANOTHER
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CACV 427/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL No.427 of 2006
(ON APPEAL FROM HCA No.997 of 2004)
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BETWEEN:
| BANK OF CHINA (HONG KONG) LIMITED | Plaintiff | |
| and | ||
| WENLOY LIMITED | 1st Defendant | |
| KWAN HIN KEE | 2nd Defendant |
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Before : Hon. Yuen JA and Chu J in Court
Date of hearing and judgment : 6 November 2007
Date of Reasons for Judgment : 9 November 2007
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REASONS FOR JUDGMENT
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Hon. Yuen JA:
1. On 28 May 2007 Rogers V-P ordered the 2nd Defendant to give security for costs in the sum of $155,000 for his appeal against Deputy Judge Muttrie’s judgment of 21 November 2006.
2. The 2nd Defendant filed an appeal against the Vice-President’s order. That was an interlocutory appeal against an exercise of discretion.
3. On 27 June 2007, this Court dismissed the appeal. The reasons for that decision have been set out in our written Reasons handed down on 29 June 2007.
4. The 2nd Defendant sought leave to appeal to the Court of Final Appeal.
5. Section 22(1) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 sets out the conditions for granting leave to appeal to the Court of Final Appeal.
6. The 2nd Defendant’s appeal to this Court from the Vice-President’s order being an interlocutory appeal, s.22(1)(a) does not apply.
7. Accordingly, the 2nd Defendant must show that the question involved in his intended appeal is one which, “by reason of its great general or public importance, or otherwise”, ought to be submitted to the Court of Final Appeal for decision (see s.22(1)(b) HKCFAO).
8. At the hearing before us the 2nd Defendant argued that the question was whether he should be obliged to prove that he was able to pay the costs of his intended appeal when the burden was on the Plaintiff to show his impecuniosity.
9. However that question did not arise. The Plaintiff had provided prima facie evidence before the Vice-President that the 2nd Defendant was impecunious as he had not satisfied a statutory demand. The 2nd Defendant argued that he did not satisfy the statutory demand because he was applying to set it aside and not because he was unable to pay. However the 2nd Defendant did not provide any evidence of his financial resources to support that allegation. That was no doubt one of the matters considered by the Vice-President in the exercise of his discretion before he ordered the 2nd Defendant to pay security for costs.
10. The matters set out in the Notice of Motion referred to factors concerning the exercise of discretion in this particular case. They did not disclose any question of great general or public importance, nor did they disclose anything to warrant the grant of leave under the residual (“or otherwise”) ground.
11. For the above reasons I dismissed this application with costs to the Respondent to be taxed if not agreed.
Hon. Chu J:
12. I agree.
| (MARIA YUEN) Justice of Appeal | (CARLYE CHU) Judge of the Court of First Instance |
Mr MC Law instructed by Tsang Chan & Wong for the Plaintiff (Respondent).
The 22nd Defendant (Appellant) in person, present.