LISA PONCET v. KHO SIN TEK HENRY

cacv 98/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 98 of 2007

(on appeal from HCAP NO. 19 of 2003)

______________________

BETWEEN

	LISA PONCET	Plaintiff
	and
	KHO SIN TEK HENRY	Defendant

______________________

 

Before : Hon Rogers VP and Suffiad J in Court

Date of Hearing : 6 December 2007

Date of Judgment: 6 December 2007

 

______________________

J U D G M E N T

______________________

 

Hon Rogers VP:

1.  This is an application for leave to appeal an order of this court to the Court of Final Appeal.  The order of this court was made on 25 July this year and the order was that the security payable by the Defendant, which was ordered by another judge of this court in the sum of $400,000, should be reduced to $250,000, and that that security should be provided by 22 August 2007.

2.  The Defendant has very clearly stated that not only has that not been paid, but also that he is not in a position to provide that security.  He wishes to appeal the judgment of this court in that respect to the Court of Final Appeal.

3.  This being an interlocutory matter, the Defendant would have to show that the issues raised on the appeal would be of great general or public importance.

4.  In my view, this application comes nowhere near that and I cannot see any basis for granting leave under the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, whether it be under the “great general or public importance” limb or the “or otherwise” limb.  In so far as the Defendant has sought to say that there are matters of fact which he wishes to go into arising from the judgment in the court below, those would not in any event come within that rubric on this application.

5.  In those circumstances, there is no alternative, as far as I can see, but to dismiss this application.

 

Hon Suffiad J:

6.  For the reasons given by the Vice-President, I, too, cannot see any basis for leave being granted to the Court of Final Appeal and I would likewise dismiss the application.

 

 

(Anthony Rogers) Vice-President

(A.R. Suffiad) Judge of the Court of First Instance

 

Mr Sanjay A Sakhrani, instructed by Messrs Stephenson Harwood & Lo, for the Plaintiff/Respondent

The Defendant/Applicant in person

 

cacv 98/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 98 of 2007

(on appeal from HCAP NO. 19 of 2003)

______________________

BETWEEN

	LISA PONCET	Plaintiff
	and
	KHO SIN TEK HENRY	Defendant

______________________

 

Before : Hon Rogers VP and Suffiad J in Court

Date of Hearing : 25 July 2007

Date of Judgment: 25 July 2007

 

______________________

J U D G M E N T

______________________

 

Hon Rogers VP:

1.  This is an appeal from a decision of Le Pichon JA in which she ordered that there should be security for costs on this appeal of $400,000.  The appeal is on an Order 14 matter.

2.  The first thing that I would say is that it is apparent, and this case has been argued on that basis, that the Defendant is impecunious and would probably not be able to afford the security for costs if it is ordered.  In those circumstances, because the Defendant is an individual and not a company, security for costs should not be ordered if it would stifle an appeal which has some merit and should be heard.

3.  In my view, the circumstances are such in this case - and I wish to say no more - that I do not think that that consideration can apply in this case and that there still should be security for costs ordered.

4.  The next question is the amount.  This is an Order 14 application.  It should be, therefore, a relatively simple matter, a straightforward matter, otherwise it should not be Order 14.  In this Court, it is unlikely to go beyond the coffee break if it is Order 14.  It certainly is not going to go longer than a day.  The amount asked for on security was $1.13 million.

5.  Doing a rough, back-of-the-envelope calculation, I approached the matter on the basis of what would be the taxed costs for a reasonably competent counsel to conduct the case in this Court on behalf of the Plaintiff.  Of course, a case like this probably does not even merit a leading counsel but, even if it does, it seems to me that a reasonable calculation for taxed costs, not the counsel that have been instructed - and I do not know who they were - but on competent counsel who could do the case, if one were to allow about $150,000 for the counsel and $100,000 for the solicitors, the amount would come to $250,000 which, in my view, should be adequate as security in this case to be ordered.

6.  For those reasons, I would reduce the amount of security to $250,000.

 

Hon Suffiad J:

7.  I agree with everything said by the Vice-President.  I have nothing to add.

 

 

(Anthony Rogers) Vice-President

(A.R. Suffiad) Judge of the Court of First Instance

 

Mr Sanjay A Sakhrani, instructed by Messrs Stephenson Harwood & Lo, for the Plaintiff/Respondent

The Defendant/Appellant in person