DR VINCENT KAY-LO IP v. DR ANDREW KEE-SUAN KOH

FAMV No. 8 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2001 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 75 OF 2000)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. At the trial, damages for deceit were awarded against this applicant in the sum of $1.5 million. He appealed to the Court of Appeal on liability and quantum. But his appeal on liability failed, and his appeal on quantum succeeded only to the extent of a $329,577.60 reduction. That left a $1,170,422.40 judgment against him. He wants leave to appeal to the Court of Final Appeal.

2. By the time when he applied to the Court of Appeal for such leave, he had been adjudged bankrupt, so that the judgment was enforceable only against his estate. The Court of Appeal refused leave. Now the applicant applies to us for leave.

3. In refusing leave, the Court of Appeal reasoned as follows. The right of appeal against a judgment enforceable only against a bankrupt's estate vests in his trustee in bankruptcy rather than in the bankrupt himself. The applicant's trustee in bankruptcy, the Official Receiver, does not wish to appeal to the Court of Final Appeal. Although a judge had made an order permitting the applicant to use the Official Receiver's name for the purposes of pursuing an appeal to the Court of Final Appeal, the $300,000 which the judge ordered as security to indemnify the Officer Receiver's liability for costs was insufficient for the purposes of the necessary indemnity. That being so, the judge's order was ineffective.

4. We have been furnished by counsel for the respondent and counsel for the Official Receiver with helpful written submissions for which we thank them.

5. Even assuming that it can sometimes be appropriate to permit a bankrupt to proceed in his trustee in bankruptcy's name when his trustee in bankruptcy does not favour an appeal, and whatever may be the true legal analysis as to with whom any right of appeal lies, such permission could only be given on condition of a full and effective indemnity. We agree with the Court of Appeal on the point that what the judge ordered does not amount to such an indemnity. Even on its own, that means that this application ought to be dismissed, and we dismiss it.

[Argument on costs]

Chief Justice Li:

(1) All costs occasioned by and incidental to the applications to the Court of Appeal and the Appeal Committee for leave to appeal to the Court of Final Appeal be to the Official Receiver and the respondent to be taxed if not agreed. Such costs to be paid out from the sum of $300,000 and interest thereon deposited with the Official Receiver pursuant to the order of Deputy Judge Kwan made on 14 December 2000.

(2) Any surplus after payment of the costs in paragraph (1) including the costs of taxation (if any) be returned to the depositor or, if more than one depositor, to the depositors in the proportion in which they deposited.