TAI FOOK FUTURES LTD v. CHEUNG MOON HOI JEFF

CACV 103/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 103 OF 2005

(ON APPEAL FROM HCA 9932 OF 1999)

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DECISION

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Hon.  Yuen JA:

1.  The Defendant has asked this court to vary the costs order nisi given on 23 October 2006.  The order nisi was that the Defendant bear the costs of this appeal.

2.  On 19 October 2006 we had heard the Defendant’s appeals from a decision of Chu J given on 7 March 2005 dismissing two summonses issued by the Defendant in February and March 2005.  The summonses were for 4 different orders, as the 2^nd summons was divided into 3 parts.

3.  On 23 October 2006 we gave judgment dismissing the Defendant’s appeal but -

(i)	in respect of the 2nd part of the 2nd summons, the Plaintiff gave an undertaking through its counsel to file a supplementary list of documents disclosing correspondence and other materials passing between it and the Securities and Futures Commission in respect of transactions between the Plaintiff and the Defendant, and
(ii)	in respect of the 3rd part of the 2nd summons, we gave leave to the Defendant to amend his summons to seek an order that
	"	the Plaintiff do make an affirmation by a director stating whether a Reuters Index Futures trade recap said to have been faxed by the Defendant’s wife to the Plaintiff on 29 April 1999 is, or has at any time, been in its possession, custody or power and if not then in its possession, custody or power, when it parted with it and what has become of it"
	and we made an order in terms of that part of the summons as amended.  The original order that the Defendant had sought in respect of this trade recap was in the following terms:
	"	The Plaintiff do within 14 days from the date of this order file with the Court affirmations of the directors and senior representatives of the Plaintiff (namely, Mr William Lee, Mr Thomas Lui, Mr Y H Wong, Mr Sunny Wong, Mr Hong Ngai Chan and Mr Fred Ho) to affirm that the Plaintiff did not receive and possess copies of trade recap of the Hang Seng Index Futures Contract for the month of April 1999 as faxed by the Defendant’s wife to Ms Mica Mak of the Plaintiff in the afternoon of 29 April 1999".

4.  We gave an order nisi that the costs of the appeal be borne by the Defendant.  The Defendant has asked us to vary the order on the grounds set out in his affirmation filed on 12 January 2007.  In his affirmation, the Defendant disclosed the fact that the Plaintiff has now located the Reuters trade recap which apparently had been in the possession of Ms Mak who left the Plaintiff in 2000, in effect vindicating his summons.  He also submitted that although the original order he sought was unconventional, he was not legally represented and should not be penalized for not using what he calls "legal jargon".   

5.  Mr Hui counsel for the Plaintiff argued that the Plaintiff was successful in the main, and that the order regarding the trade recap was made only after an amendment suggested by the court at the hearing.  He submitted that given the 4 parts of the two summonses under appeal, the Plaintiff’s costs should be reduced by only 1/4 to reflect the part on which the Defendant was successful.

6.  We have taken into account, amongst other things, the fact that the order regarding the trade recap was made only after an amendment suggested by the court.  It is not, as the Defendant argues, a matter of an unrepresented litigant not knowing legal language. It was a matter of the substance of the order he sought originally, which would not have been granted as it was not grounded in the rules of court.   We have however also taken into consideration the fact that the undertaking given by the Plaintiff regarding the SFC materials was only given at the hearing of the appeal.   After considering both parties’ submissions, we take the view that the order nisi should be varied such that the Defendant be ordered to pay 2/3 of the costs of the appeal. 

Hon Kwan J:

7.  I agree.