PANG KWAN v. LUEN HING CONSTRUCTION & ENGINEERING LTD AND ANOTHER

[English Translation – 英譯本]

CACV 142/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 142 OF 2007

(ON APPEAL FROM HCPI NO. 334 OF 2005)

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BETWEEN

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JUDGMENT

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Hon Cheung JA (delivering the judgment of the Court):

1. Upon application by the Defendants, Yeung JA ordered the Plaintiff, who has lodged an appeal against the judgment of Deputy Judge Longley dated 17 April 2007, to provide $100,000 as security for costs of the appeal. The Plaintiff now appeals against the order.

2. The order for security for costs against the Plaintiff was made in the exercise of Yeung JA’s discretion. The legal principle governing the exercise of discretion is that, unless Yeung JA erroneously exercised the relevant discretion, or unless he took into account irrelevant considerations or overlooked significant or relevant considerations in making the order, the appellant court will not set aside the order and make another order in its place.

3. In exceptional circumstances, the appellate court will order an appellant to provide security for costs of the appeal. If there is evidence to show that the appellant is impecunious and, if the appeal fails, unlikely to be able to pay costs of the opposite party, these will be regarded as exceptional circumstances which justify the making of an order for security for costs against the appellant.

4. In the present case, it is beyond dispute that the Plaintiff is impecunious. Furthermore, Yeung JA also considered the prospects of success of the Plaintiff’s appeal before making the order for security for costs. This is because, if the Plaintiff could show that he had compelling grounds of appeal, the court could still decline to make an order for security against him.

5. In the present case, the Plaintiff claimed against the Defendants for common law damages on the ground that, by reason of negligence on the part of the Defendants, the Plaintiff had sustained injuries at work. The claim was dismissed by Deputy Judge Longley on the basis of discrepancies between the account of the accident given by the Plaintiff after he was injured and his evidence at trial. The Deputy Judge held that he was not a veracious witness. The Plaintiff claimed after the accident occurred that he had fallen from the first level of the work platform, but at trial he testified that he had fallen from the third level of the work platform. He now alleges that the work platform as shown in the relevant photographs comprised more than one level. In our view, the photographs do not serve to show that the work platform consisted of three levels. More importantly, the Deputy Judge made the findings of fact after hearing the relevant evidence. We do not consider that the Plaintiff has shown any compelling ground of appeal which justifies overturning those findings of fact.

6. This being the case, we see nothing incorrect or improper in the order made by Yeung JA. We therefore dismiss the Plaintiff’s appeal and order him to pay the 1^st and 2^nd Defendants’ costs of the appeal.