CHU KWOK KEE KOOKIE v. CHU KWOK BING

CACV 162/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CVIAL APPEAL NO. 162 OF 2015

(ON APPEAL FROM HCMH No. 83 OF 2013)

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DECISION

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Hon Chu JA giving the Decision of the Court:

1. This appeal was brought by Mr Chu Kwok Bing (“the intervener”) against the order of L Chan J made on 15 June 2015 whereby it was ordered, inter alia, that Mr Chu Kwok Kee, Kookie (“the applicant”) be appointed the Committee of the Estate of Madam Ming Chor Pao (" Madam M"), who is the mother of the applicant and the intervener.

2. By summons filed on 31 March 2016, the intervener applies that the applicant be ordered to pay security for costs in the sum of $4 million. The applicant opposes the application. His solicitors had put in a written submission. In the interest of saving costs, we have granted their request to be excused from attending the hearing.

3. In his affirmation in support of the present application, the intervener set out seven reasons for ordering the applicant to provide security for costs, which may be summarized as follows:

A.   The applicant issued an ex parte originating summons and registered it in the Land Registry against Madam M's property in Mei Foo Sun Chuen (“Mei Foo property”), as a result of which the sale of the property could not be completed. The applicant lied in saying he issued the ex parte originating summons because he did not know the whereabouts of Madam M when she was in fact living in Mei Foo.

B.   The applicant is not honest and two actions have been commenced against him for misappropriation.

C.   The applicant's application should have been dismissed for non-compliance with section 7 of Mental Health Ordinance, Cap. 136.

D.   Madam M has given general powers of attorney and an enduring power of attorney (“EPA”) in favour of the intervener. The Enduring Powers of Attorney Ordinance, Cap. 501 has no provision prohibiting an attorney of an EPA from acting as interpreter for the donor. The medical doctors did not object to the intervener acting as Madam M's interpreter when she did the Mini Mental State Examinations.

E.   A geriatric specialist and a psychiatrist had certified Madam M to be mentally sound on 15 January and 10 April 2014 respectively. The medical opinions of Dr John Wong and Dr C K Wong, appointed to examine Madam M pursuant to order of the court, could only prove Madam M was mentally incapacitated on 21 July 2014. Dr C K Wong was wrong to assume Madam M has been continuously mentally incapacitated in the past five years.

F.   The intervener holds a declaration made by Madam M on 31 October 2013 giving all her properties to him, and also Madam M's will dated 24 October 2013, under which he is the sole beneficiary.

G.   The applicant's registration of the originating summons in the Land Registry is an abuse of process to prevent and delay the sale of the Mei Foo property by the intervener acting as Madam M's attorney.

4. We are of the view that the intervener's application for security for costs has no proper basis and that none of the reasons he advances amounts to proper ground for the application.

5. Under Order 59 rule 10(5) of The Rules of the High Court, Cap. 4A, the Court of Appeal may in special circumstances order that such security be given for the costs of an appeal as may be just. Special circumstances include impecuniosity of the appellant, or where the respondent will encounter difficulty, undue delay or expenses in enforcing an order for the costs of the appeal that the Court of Appeal may make against the appellant. The rationale underlying the rule is that the appellant already have the dispute determined in the court below, 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 circumstances where the respondent will be unable to enforce against the appellant any order for costs made by the Court of Appeal: see Hong Kong Civil Procedure 2016 Vol.1 para.59/10/25.

6. Accordingly, and as is plain from the authorities[1], an order to provide security for the costs of an appeal is only directed at the party appealing, and is not to be made against the respondent to an appeal. There is therefore no proper basis for the intervener, who is the appellant, to seek security for costs against the applicant, who is the respondent in this appeal.

7. Secondly, the amount of $4 million that the intervener seeks from the applicant as security for costs is in fact not just an estimate of his costs that have been or are likely to be incurred for this appeal. It appears from the intervener's affirmation and as explained by the intervener at the hearing, the $4 million includes also: (i) compensation he may have to pay for not being able to sell the Mei Foo property[2], (ii) costs of the action below, (iii) costs of other actions involving him, his sister and the applicant, and (iv) costs of actions brought against him and Madam M by the party with whom he had contracted to sell the Mei Foo property. There is simply no legal basis for ordering security for potential liability for compensation. Nor is there proper basis for making an order in this appeal for the costs in other litigations.

8. All that were said by the intervener in his affirmation are essentially his reasons for appealing against the Judge's order. An application for security for costs is not an appropriate occasion to conduct an examination of the arguments and issues in the appeal. It suffices to point out that the matters advanced by the intervener cannot constitute proper basis for ordering the applicant, who is the respondent in this appeal, to give security for the costs of the appeal of the intervener, who brought the appeal.

9. The intervener also complained that he was a victim and that the dispute and appeal process has dragged on for a long time. None of these is relevant to the application, which was brought without proper basis. 

10. For the reasons set out above, the intervener's application has no merits. Accordingly, we dismiss the summons.

11. The applicant asked for his costs of the application to be summarily assessed and paid forthwith by the intervener. His solicitors had lodged a statement of costs. The intervener argued that there should be no order as to costs or costs should be ordered against the applicant because the fault did not lie with him, but with the wrongful determination in the court below. This is hardly a reason for not applying the normal rule of costs follow event, especially when the intervener’s application is wholly unmeritorious. We order the intervener to pay the applicant his costs of this application forthwith.

12. The intervener had no submission on the statement of costs provided by the applicant’s solicitors. We have considered the items and amounts claimed in the applicant’s statement of costs. We are of the view that they are proper and reasonable, and should be allowed in full. We therefore summarily assessed the applicant’s costs of this application at $13,346.

[1] See Hong Kong Civil Procedure 2016 Vol.1 paras.59/10/25 to 59/10/27 and the cases referred to in the passages.

[2] See the paragraph under the heading of “Conclusion” on p.5 of the intervener’s affirmation.