匠心髮型 v. NEW MEDIA GROUP LTD AND OTHERS

CACV 206/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 206 OF 2006

(ON APPEAL FROM HCA NO. 1332 OF 2003)

______________

______________

_______________

D E C I S I O N

_______________

1.  This is the 1^st defendant’s application for security for the costs of the plaintiff’s appeal against the judgment of Chung J, given on 22 May 2006, after a four-day trial.

2.  I am satisfied that this is a suitable case for security to be ordered.

3.  On the evidence before me, I believe and am satisfied that the 1^st defendant is likely to encounter difficulty incurred expense in enforcing any costs order against the plaintiff.  As the supplemental affirmation of Mr Yeung Wai-chung shows, the plaintiff has been ordered to pay costs in two other sets of proceedings, namely HCA 1096 of 2004 and CACV 151 of 2005, and HCA 3236 of 2002 and CACV 243 of 2005.  The evidence is not clear whether these costs are still outstanding.  But having regard to the number of proceedings in which the plaintiff is involved, notwithstanding that on the last occasion, Mr Choi has produced to the court various bank passbooks, showing that he has deposits in excess of $500,000, I am still of the view that the 1^st defendant is likely to encounter difficulty or incurred expense in enforcing the costs order against the plaintiff.

4.  The defendant’s cost of the trial for HCA 1332 of 2003 has been taxed at $433,000.00 odd.  The allocatur was served on the plaintiff on 11 January 2007, however the plaintiff has so far not made payment.

5.  Moreover, having read the judgment of Chung J, the subject of this appeal, and the judgment of this court in CACV 151 of 2005, where similar issues were raised by the plaintiff and were held by this court to have been properly struck out, I am satisfied that the plaintiff’s appeal lacks merit, such that one may reasonably infer that the appeal is not pursued bona fide.

6.  I have had the benefit of written submissions from the plaintiff on why, according to him, the appeal is meritorious.  Having read his submission, I regret to say that I do not agree, and certainly at the level of Court of Appeal, his appeal is almost certain to fail.

7.  As for the amount of securities sought in the sum of $210,000, I believe that the amount claimed is reasonable, having regard to the fact that the trial lasted four days, and that the cost which was taxed for those costs amounted to as much as $433,000.

8.  So what I will do is to make an order the plaintiff within 14 days from today gives security in the sum of $210,000, as security for the cost of appeal from the judgment of Chung J dated 22 May 2006, and that until such security is provided, the appeal be stayed, and that in default of such security being given within the time aforesaid, the said appeal do stand dismissed without further order with costs to be taxed and paid by the plaintiff to the 1^st defendant.

9.  So far as the cost of this application is concerned, I think the costs should be in the costs of the appeal.

10.  After hearing further submission on the time for payment, I order that time for payment be 21 days instead of 14 days.