SO YEE MUI AND OTHERS v. LAM PUI CHI

CACV 283/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 283 OF 2010

(ON APPEAL FROM HCAP NO. 7 OF 2008)

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BETWEEN

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the court):

1.  This is the Defendant’s appeal against a decision of Kwan JA given on 8 April 2011 ordering the Defendant to pay security for costs of CACV283/2010 which is her appeal against a judgment of Lam J given on 1 December 2010 in a contested probate action HCAP7/2008 over the estate of Chan Hay Shun, deceased.

2.  In the probate action the 1^st Plaintiff sought a declaration that she was the Deceased’s wife and the 2^nd Plaintiff (who it was proved was the Deceased’s son) sought an order for Letters of Administration.  The Defendant claimed to be the Deceased’s wife.   

3.  Lam J found that the Defendant was not the Deceased’s wife.  In brief, the learned judge disbelieved the Defendant’s evidence that she had taken part in a marriage ceremony under the Marriage Reform Ordinance on a day before 7 October 1971, being the date after which such marriage ceremonies would cease to be valid.  He also found that the 1^st Plaintiff was the Deceased’s wife and that the Defendant had admitted in certain letters written to the Deceased in 2006 that she herself was not his wife.      

4.  The Defendant lodged an appeal against Lam J’s judgment.  The Plaintiffs sought an order for security for costs.

5.  Kwan JA ordered security in the sum of $350,000 to be paid within 42 days of her order, failing which CACV283/2010 would be dismissed.  The sum was not paid in time and as no stay had been granted, technically the appeal has already been dismissed. 

6.  The Defendant’s appeal against Kwan JA’s order was also out of time as the deadline for appealing fell on 18 April 2011.  The Defendant did not lodge her appeal against Kwan JA’s order until 11 May 2011. No reasons have been given for the delay.  This factor counts against the Defendant in her appeal.

7.  In any event, it is well-established law that an order for security for costs is made in the exercise of the court’s discretion and generally an appellate court will not interfere unless it has been shown that there has been an error of law, or a misapprehension of material facts, or errors in matters taken or not taken into account, or the exercise of discretion was plainly wrong.  We do not see any such grounds for disturbing Kwan JA’s judgment.   

8.  As for the Defendant’s amended grounds of appeal against Lam J’s judgment which amended grounds were not before Kwan JA, these are all directed against the learned judge’s findings of fact.  However it is well-established law that an appellate court would generally not interfere with a judge’s findings of fact.  We would therefore agree with Kwan JA that the Defendant does not have reasonable prospects of success on her appeal such as to provide her with an exception to an order for security for costs.

9.  Finally the Defendant has suggested that in place of payment of $350,000 cash as security for costs, there could be a charging order over the shares registered in her name in American Electronic Ltd.  We do not think it would be appropriate to vary Kwan JA’s order in this way.  There is a dispute as to whether these shares belong beneficially to the Defendant or to the Deceased.  In any event, this is a private company and it is well-established that enforcement of orders over shares in a private company may be expensive or protracted.

10.  Accordingly we would not vary the security for costs order in the manner suggested by the Defendant.

11.  In the circumstances, this appeal against Kwan JA’s order must be dismissed. 

12.  Having heard the parties on costs, we see no reason to depart from the usual rule that costs should follow the event and having regard to the hopeless nature of this appeal, we would make a gross sum order in the sum of $35,000 in lieu of costs to be taxed on an indemnity basis to be paid by the Defendant to the Plaintiffs.