CHOW WING KUN AND ANOTHER v. POON TIK KA AND OTHERS

HCA 1465/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1465 OF 2009

_______________

_______________

_________________________________

REASONS FOR DECISION

_________________________________

1. This is an appeal against the Order of Master Lo dated 14 July 2014 when she ordered P2 to make payment into Court of $700,000 within 14 days as security for costs.

2. D2 is resident in Canada and the application was made to secure the interests of the defendants.

3. Master Lo did not give any written reasons for her decision.

4. Having regard to the overall circumstances of this case it was my view that it was necessary to adopt a “broad brush” approach to the amount of security which should be ordered.

5. It is apparent from a perusal of the court documents made available to me that this is substantial litigation the background of which I am told goes back over 20 years. 

6. The case itself has taken over 4 years and has been strongly contested.  

7. At the present time the case has not yet got far beyond the stage of getting the pleadings in order.

8. The Statement of Claim is 26 papers in length.

9. There are 5 defendants and it is mostly the case that there are separate and distinct causes of action amongst the different defendants.

10. Among the causes of action included in the Statement of Claim are allegations of conspiracy to defraud, fraud, forgery and impropriety concerning the lodging of documents in the company Registry.

11. There were lengthy requests for further and Better Particulars of the Statement of Claim which were contested and repeated.

12. The defence of D1, D4 and D5 ran to 12 pages.  The Reply to this was 6 pages.

13. There was then a Request for Further and Better Particulars of this Defence.

14. A Separate Defence of D2 ran to 11 pages and D3’s was 8 pages.

15. The Answer to the Request for Further and Better Particulars with attachments relating to D1, 4 and 5 ran to 12 pages.

16. The reply to D2’s Defence was 7 pages and to D3’s was 6 pages.

17. I was told that P1 has been adjudicated Bankrupt and was committed to Prison for contempt of Court in relation to other proceedings which are or were before the court.

18. It is apparent from the papers before me that P1 had been married to D2 and that they had gone through an acrimonious divorce resulting in much bitterness between the parties.

19. It is also evident that there are substantial disputes in relation to company accounts and that it will almost certainly be necessary to obtain Expert evidence on the Accounts.

20. Also it is almost certain that it will be necessary to call Expert evidence in relation to the allegations that Forgery has been perpetuated.

21. Numerous witnesses will have to be called.  Proofs of their evidence will have to be prepared and the preparation for the trial will be time consuming.

22. It appeared to be inevitable that the trial of the proceedings would be protracted.

23. Also it would appear to be inevitable that it would be necessary to engage the services of a senior and junior counsel.

24. I studied the Bill of Costs and the Skeleton Bill produced by the defendants and was of the opinion that having regard to the amount of work anticipated the items being claimed were very modest in all the circumstances.

25. It was for this reason that I ordered that the full amount as claimed in the Notice of Appeal should be allowed as claimed and should be payable into court within 21 days.

26. I informed counsel of this decision at the conclusion of the hearing and said that I would be giving short reasons for it.

27. These are my reasons.  I ordered a short adjournment and Mr Martin Wong and Mr Mike Lui, the 2 counsel, engaged in this appeal asked for time to see if they could agree an appropriate order for costs of this hearing and the hearing before the Master.

28. Counsel were able to agree that payment of a global figure of $200,000 from the plaintiff to the defendants should be paid and I made an order to this end.

29. The appeal is allowed on these terms.  There will be liberty to apply if there is a need for further security in the future.