POON HIAO YEN v. KWOK WOOD YAN AND OTHERS

CACV 359 /2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CIVIL APPEAL NO. 359 OF 2008 

(ON APPEAL FROM HCA NO. 1813 OF 2003) 

----------------------

----------------------  

----------------------

D E C I S I O N

----------------------

1.  The plaintiff – Pao Hiao Yen claimed against the defendants, Kwok Wood Yan (D1), his wife - Fong Shik Yee (D2) and Tiffit Securities (HK) Ltd (Tiffit) for $1.5 million, being money paid to D1 and D2 for 1.5 million shares in Tiffit.

2.  At the material times, D1 and D2 were the directors and only shareholders of Tiffit. It was the plaintiff’s case that having accepted her $1.5 million, D1 and D2 failed and/or refused to issue any Tiffit shares to her.

3.  D1 and D2, having admitted the plaintiff’s payment of $1.5 million and that no shares had been issued her, contended that it was the plaintiff who had prevented the issue of shares by failing to properly prepare and submit certain requisite forms. D1 and D2 further contended that it was Tiffit that received the money and they had no personal liability to repay the money to the plaintiff.

4.  On 13 October 2008 Deputy High Court Judge Au gave judgment for the plaintiff against D1 and D2 for $1.5 million with interest and costs. Deputy Judge Au found as a fact that the plaintiff had done what D1 had asked her to do in connection with the transfer of the Tiffit shares. Deputy Judge Au further found that D1 and D2 were parties to the share purchase agreement and that they had agreed to sell the shares to the plaintiff for $1.5 million.

5.  On 3 December 2008, D1 filed his Notice of Appeal against the judgment, but no hearing date has yet been fixed.

6.  On 7 January 2009, the plaintiff took out the present application for security for her costs of the appeal in the sum of $215,500 on the basis that D1 is impecunious. The plaintiff relies on D1’s repeated admission that he has no money to instruct a lawyer and is acting in person in the appeal.

7.  Order 59 rule 10(5) gives the court the power to order security of costs against an appellant where there are special circumstances rendering it just to do so.

8.  The established categories of “special circumstances” include cases where the appellant, through insolvency or inpecuniosity, will be unable to pay the costs of the appeal when the appeal fails, and where the respondent is likely to encounter undue delay or be put to undue expenses in enforcing any costs order against the appellant.

9.  D1’s impecuniosity appears not disputed as he keeps saying that he has not money to instruct a lawyer. In his submission, D1 further informs the court that he is subjected to an injunction order restraining him from dealing with assets up to over $80 million when his total assets are valued only at a few million dollars. He concedes that such an injunction order means that, in practice, the plaintiff will find it impossible to enforce any costs order against him.

10.  In my view, D1 is unlikely to be able to pay the costs of the appeal when it fails and the plaintiff is likely to encounter undue delay or be put to undue expense in trying to enforce any costs order against D1 if and when his appeal fails.

11.  I have also considered the merits of D1’s proposed appeal. It is not necessary to form any definite view on the issue, but I am not satisfied that there is sufficient reason to exercise my discretion not to order him to furnish security for the plaintiff’s costs of the appeal. The judgment against D1 rests principally on certain findings of facts, which findings the Court of Appeal is unlikely to disturb.

12.  The issues involved in the proposed appeal are short and simple and having examined the plaintiff’s skeleton bill of costs, I am satisfied a reasonable amount is $150,000.

13.  I therefore make the following orders:

1. D1 is to furnish security for the plaintiff’s costs of the appeal in the sum of $150,000 by making payment into court within 28 days of the service of this order;

2. Until D1 provides the security for costs aforesaid, all proceedings in the appeal will be stayed;

3. If D1 fails to provide the security for costs within 28 days, his appeal shall be dismissed without further order with costs of the appeal to the plaintiff to be taxed if not agreed; and

4. If D1 complies with the order for security of costs, costs of this application to be in the cause of the appeal.