XCHRX CHAN SIU LUN v. HUI CHO YEE AND ANOTHER

CACV 171/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 1999

(ON APPEAL FROM HCPI 27 OF 1999)

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R U L I N G

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Leong, J.A. (giving the ruling of the Court):

1. The appellant was injured in an accident in December, 1988. His claim for damages against the driver and owner of the car involved in the accident (the Respondents) was heard in the Court of First Instance of the High Court on 27th March 1998. On 17th May 1998, Nguyen, J. gave judgment in the appellant's favour and awarded him total damages amounting to $267,852. The appellant was not satisfied with this judgment and he appealed to the Court of Appeal and his appeal was heard on 17th and 18th September 1998. His appeal was allowed to the extent that the award was increased. The appellant remained unsatisfied with the result and he sought leave to appeal to the Court of Final Appeal. Leave to appeal was refused by the Court of Appeal and the Court of Final Appeal on 25th November 1998 and 21st December 1998 respectively.

2. The appellant persisted to pursue his action by issuing fresh proceedings on the same cause of action against the same parties, that is the respondents. This new action was dismissed on 11th June 1999 by Ms Registrar Chu on the ground of "res judicata". The appellant then appealed against this decision but his appeal was dismissed by Cheung, J. on 24th June 1999. The Judge in his judgment said this:

"The Plaintiff is now suing in this action on the same cause of action he had relied upon in the previous action and also against the same parties. This he cannot do. The principle is that the same cause of action cannot be litigated again when it had already been adjudicated upon. The only basis relied upon by the Plaintiff to continue with the present action is that he has some additional evidence not previously disclosed in the earlier action. This is not good enough. ..."

3. The Judge also said that the matter of assessment of medical evidence and factual evidence had already been fully considered in the previous action and the matter could not be litigated again.

4. The appellant has filed a notice of appeal against this judgment of Cheung, J. on the same grounds he had put before Cheung, J. and in addition, he says the court had not gone into the merits of the case especially the new medical evidence.

5. The respondents now apply for security for the costs of their appeal on the ground that the appellant is impecunious and would not be able to pay their appeal costs if he is unsuccessful in his appeal. They also say that there is no merit in the appellant's appeal.

6. In the affirmation in support of the application for security for costs the respondents state that the appellant presently resides in a flat owned by a company with a capital of $10,000. The appellant owns only one share of the 10,000 $1 shares of the company. The appellant was asked to give $50,000 security in a letter to the appellant by the respondent but the appellant refused to response to that request and also refused to say what assets he had to meet the costs of the appeal.

7. Before me this morning the appellant says that he should not be prevented to proceed with his appeal because of his poor financial position. He says there is merit in his appeal. He also says that there were certain evidence which were new which the court had not considered. But Mr. Tam for the respondents states that this matter had already been gone into in the previous trial as well as in the Court of Appeal.

8. In my opinion, the appeal is less than meritorious. It is prima facie an abuse of the process of the court. Relitigation on the same cause of action against the same parties after it has been tried on the merits and finally disposed of by the Court of Final Appeal is very unlikely to succeed. The respondents should be protected from the costs of the appeal by the appellant on an appeal which has little chance of success. The respondents in the affirmation has put in a draft bill of costs. It is an estimate of the costs likely to be incurred by the respondents if the appeal which has been fixed for a two hour hearing is heard. It is in the region of $100,000. I have no reason to suspect that that is an exaggerated estimate of the costs likely to be incurred and costs which have already been incurred in the trial before Nguyen, J. I am informed by Mr. Tam that the trial costs had been taxed and it came to over $400,000.

9. Having heard the submission from the parties, I am satisfied that the appellant will not be able to meet the costs, if he is unsuccessful in his appeal which is prima facie unmeritorious. Accordingly I order the appellant shall furnish a sum of not less than $100,000 either in cash or by bank guarantee as the respondents' costs in the appeal. Such security shall be provided within 14 days hereof, until security is finished within that time the appeal shall be stayed and in default the appeal shall stand dismissed.

10. The costs of this application shall be costs in the appeal.