STANDARD CHARTERED BANK (HONG KONG) LTD v. YUE KWONG MAN AND ANOTHER

CACV 211/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2004

(ON APPEAL FROM HCMP 3849 OF 2003)

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D E C I S I O N

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1. This is the plaintiff’s application for security for costs in respect of the 1^st defendant’s appeal against the judgment of Chung J dated 15 June 2004.

2. The amount of security sought is $230,000 and is supported by a skeleton bill of costs exhibited to the affirmation of Steven John Cheng dated 6 January 2005 (“the affirmation”).

3. According to the Hong Kong Civil Procedure, paragraph 59/10/29, “It is the settled practice to require security for costs to be given by an appellant who would be unable through impecuniosity to pay the costs of the appeal, if unsuccessful, without proof of any other special circumstances”.

4. The information contained in paragraph 2 of the affirmation show that the 1^st defendant is impecunious. 

5. The 1^st defendant has supplied a written submission dated 22 January 2005 which I have considered carefully.  In essence, the 1^st defendant’s case is that he had a good defence based on the alleged undue influence of the 2^nd defendant, his son.  He also submitted that Chung J was wrong.

6. Apart from the fact that the defence of undue influence had not been properly raised before the master or the judge, I am not satisfied that this appeal has sufficient merit to persuade me that no security for costs should be given.  Nor am I not satisfied if security should be ordered it would prevent the 1^st defendant from pursuing his appeal.  So I would order security.

7. As to the amount, I believe the amount sought by the plaintiff is too high.  The appeal is straightforward.  In the circumstances, I believe the amount of security I should order is $120,000 and I order (1) that security in the sum of $120,000 is to be given within 28 days of today, (2) that the appeal be stayed meanwhile and (3) in default of the appellant giving the security within 28 days of today, the appeal to stand dismissed with costs without further order. 

8. I also make an order that the costs of this application be costs in the cause of the appeal.