YEUNG BEE LEE, BILLY v. HONG KONG HOUSING AUTHORITY

CACV195 & 196/2002

CACV195/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2002

(ON APPEAL FROM HCA 1425 OF 2001)

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J U D G M E N T

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1. I have two applications for security for costs of the appeal before me. The applicants are the defendant in CACV195/2001, the Government of the HKSAR ("HKSARG") and the defendant in CACV196/2001, Hong Kong Housing Authority.("HKHA"). The plaintiff in these two cases is Yeung Bee Lee Billy. These applications are now heard together.

2. In 1995, residents in Rennie's Mill were served with notice to quit by the HKHA. In judicial review proceedings before Sears J in 1996, the judge ruled the residents were entitled to compensations or damages.

3. The plaintiff was a former resident of Rennie's Mill. After the judgment of Sears J, the plaintiff took out proceedings seeking compensation from the HKHA in respect of his cottage. His case was consolidated with other similar cases and in 1998, Sears J gave judgment in respect of these cases. Sears J in his judgment set out the criteria for determining eligibility for damages and the formula for calculating them. The judge ruled that the plaintiff's claim was to be assessed in accordance with that formula.

4. The plaintiff's compensation was subsequently assessed as one-third of the total amount for all eligible family members of the cottage, i.e. one-third of $1,780,420.26. The plaintiff was to be paid this one-third amount less $60,000 costs.

5. The plaintiff appealed and asked for his compensation to be reassessed (CACV282/1998) but his appeal was dismissed. The Court of Appeal ruled that the plaintiff together with other appellants heard at the same time never had any right to claim damages or compensation nor any claim for judicial review.

6. In November 1998, the plaintiff collected this amount.

7. In October 1999, the plaintiff took out proceedings against the HKHA (HCMP6606/1999) to require the HKHA to pay the whole amount of $1,780,420.26 to him on the ground that there was no other family member eligible for compensation. The HKHA investigated the case and confirmed there was no such eligible family member. The amount of compensation was recalculated on the basis that the plaintiff was sole eligible person. The amount came to $1,774,442.48.

8. The plaintiff and the HKHA came to a settlement subsequently and in August 2000, the plaintiff was paid $1,180,969.6 against his undertaking to withdraw the proceedings in HCMP6606/1999 and waive all other claims against the HKHA.

9. The plaintiff did not withdraw HCMP6606/1999 as he had undertaken. In May 2001, the plaintiff commenced proceedings against the HKSARG (HCA1425/2001) and proceeded with the proceedings in HCMP6606/1999 against the HKHA. He also took out further proceedings HCMP1731/2001 against the HKHA.

10. In October 2001, the HKHA took out a summons to stay the proceedings in HCMP6606/1999 and to strike out the proceedings in HCMP1731/2001. The HKSARG also took out a summons to strike out the proceedings in HCA1425/2001.

11. The plaintiff then took out a summons to withdraw HCMP1731/2001 and a summons to set aside the settlement under HCMP6606/1999.

12. On 9 January 2002, Deputy Judge To made the following order:

1. By consent, the plaintiff to withdraw the proceedings in HCMP1731/2002 with costs against him on an indemnity basis.

2. The statement of claim in HCA1425/2001 against the HKSARG be struck out and the action be dismissed.

3. The summons to set aside the settlement in HCMP6606/1999 is dismissed. The proceedings in HCMP6606/1999 shall be permanently stayed.

13. The plaintiff appeals against this order.

14. Both defendants apply for security for costs in the amount of $165,000, on the ground that the plaintiff is in financial difficulty and that there is no merit in the plaintiff's appeals. No detailed and itemized estimates of such costs have been exhibited initially. On the adjourned hearing of this application, the defendants have furnished the court with an estimate of the costs likely to be involved in the appeals.

15. Counsel for the defendants, Mr Kwok submits that the plaintiff would not be able to pay the costs of the appeal having regard to the fact that he had no real property in Hong Kong and also that the plaintiff had admitted in the hearing before Deputy Judge To that he had spent all the compensations he was paid on legal costs. It is also submitted that the appeals of the plaintiff are an abuse of process because they were re-litigation on matters which have been finally determined by a competent court.

16. The court's power to order security for costs is discretionary. Impecuniosity of the appellant is a ground to award security for costs in the Court of Appeal.

"In deciding whether to award security for the costs of an appeal to the Court of Appeal, the court takes into account the fact that the appellant has already had the issue concerned determined in the court below, and it is prima facie an injustice to a respondent to allow an appeal to the Court of Appeal to proceed without security for costs being furnished in circumstance where the respondent will be unable to enforce against the appellant any order for costs made by the Court of Appeal." (paragraph 59/10/28 in the Hong Kong Civil Procedure 2002)

17. In paragraph 59/10/32 of the same authority, it is stated that :

"Security will be ordered upon proof of the prima facie case of an abuse or threatened abuse of process of the court or where the proceedings are vexatious."

18. Except what Deputy Judge To said in his judgment and the allegations made by the legal representative of the defendants, that the plaintiff had spent his compensations on legal costs and that he is in debts, there is no other evidence to show that the plaintiff is in financial difficulty.

19. The plaintiff in his affidavit states that his financial position had improved since receiving the compensation and that he had taken $165,000 in cash to show to the solicitors of the defendants after he received a request for security for costs from the solicitors.

20. The defendants solicitors does not deny that the plaintiff had taken to their office a bundle of cash but as to how much there was, there is no evidence. Nevertheless, in the latest affidavit of Ms Ng, solicitors for the defendants, there was evidence to show that the plaintiff had no real property assets in Hong Kong. The plaintiff believed that he had the right to appeal and that the defendants should not be allowed to bar him to proceed with his appeals by way of the present application.

21. As to the merits of the present appeals, Deputy Judge To found the plaintiff and the HKHA had come to the settlement agreement without undue influence or duress and the agreement was enforceable against the plaintiff. Deputy Judge To said that the settlement had been wholly performed by the HKHA and to allow the plaintiff to proceed would be a to allow the plaintiff to practice a fraud on the HKHA. He concluded that the proceedings should be stayed and he dismissed the plaintiff's summons to set aside the settlement agreement.

22. The Deputy Judge in his judgment also found the plaintiff sought to re-litigate in HCA1425/2001 on the question of whether the plaintiff had a proprietary interest by estoppel in the property in Rennie's Mill. But this question had already been decided in CACV282/1998 (on appeal from HCMP114/1998). The plaintiff had asked the court to re-consider this question relying on evidence, albeit different, available to him when CACV282/1998 was decided. The judge held that the plaintiff was bound by the decision in CACV282/1998 and the statement of claim in HCA1425/2001 should be struck out.

23. In my opinion, having regard to the above, the plaintiff was seeking by way of these proceedings to re-litigate on an issue or issues which had already been finally disposed of in a competent court. That his appeals against the decision of Deputy Judge To is doomed to fail is obvious. Having regard to the plaintiff's financial position, it is also likely that the defendants will encounter undue delay or expenses to enforce an order of costs against the plaintiff if the plaintiff's appeals are unsuccessful. The plaintiff has submitted that the amount of security of $165,000 was too much and he had counter-proposed the sum of $100,000. However, I am satisfied that the amount of $165,000 as security for the costs of both appeals is reasonable in the circumstances. I therefore make an order that the plaintiff is to furnish a sum of $165,000 or such security in the same amount as may be approved by the Registrar of the High Court as security for the costs of his appeals within 28 days hereof, in default of which, the appeal shall be dismissed forthwith without further application from the defendants. The costs of this application and the hearing which was adjourned till today shall be to the defendants in any event.