FU PUI YUEN AND OTHERS v. LUK NGAI LING IRENE

CACV 355/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 355 OF 2006

(ON APPEAL FROM HCA NO. 3074 OF 2001)

______________

______________

_______________

D E C I S I O N

_______________

Hon Tang VP (giving the decision of the Court):

1.  This is the defendant’s application for security for costs of the appeal.  The appeal was brought by Mr Fu Pui-yuen formerly known as Fu Kai-wa and Ms Cheung Ying-lam.  However, this application for security is made against Mr Fu only.

2.  I understand from Ms Ip of the Messrs Lily Fenn & Partners, that Ms Cheung is a cohabitee of Mr Fu, and the evidence at trial was that Mr Fu and Ms Cheung were going to get married.

3.  In the trial, they were the plaintiffs in HCA 3074 of 2001, they have been ordered by A Cheung J to pay the defendant the sum of $797,000, in respect of the defendant’s counterclaim.  The plaintiffs’ claim was dismissed.  They were also ordered to pay the cost of the proceedings.

4.  The trial which was conducted together with two other actions, namely HCA 904 of 2004 and HCA 905 of 2004, took a total of 8 days and involved an abortive purchase of exempted small houses in the New Territories.

5.  The application is based essentially on the Mr Fu’s lack of means.  I am satisfied that on the evidence that the defendant will be likely to encounter undue delay or be put to undue expense in enforcing any order for costs in the appeal in her favour.

6.  So far as Ms Cheung is concerned, there is no evidence in relation to her means, but in the circumstances of this case, I believe, nevertheless, that this application should be granted.

7.  The appeal is estimated to take one day.  All in all, I believe the security asked for in the sum of $222,200 is too high, I would instead order security in the sum of $150,000 to be provided on the terms stated in the summons for security dated 9 May 2007.

8.  So I make an order that the 1^st named plaintiff, Fu Pui-yuen, within 14 days from today gives security in the sum of $150,000, as security for the costs of his appeal from the judgment of A Cheung J dated 14 August 2006, and that until such security is provided, the appeal by Fu Pui-yuen be stayed, and that in default of such security being given within the time aforesaid, Fu Pui-yuen’s appeal do stand dismissed without further order with costs to be taxed and paid by Fu Pui-yuen to the defendant.  Costs of this application be in the cause of the appeal.