XCHRX LI KOON WAH v. CHAN HOI WAI WALLACE

HCA13412/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.13412 OF 1998

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J U D G M E N T

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The appeal

1. The Defendant applied for security for costs against the Plaintiff on the ground that he is ordinarily resident outside Hong Kong. The application was refused by Master Poon. The Defendant now appeals.

Further application

2. The Defendant also issued a fresh summons before me seeking security for costs on the basis that the Plaintiff has changed his address in the course of the litigation with a view to evade the consequence of litigation.

The facts

3. On the question of ordinary residence of the Plaintiff, the Defendant's case is based on what the Plaintiff told him before, namely, that he was a Canadian passport holder and his family was also in Canada. He left Hong Kong for Canada in December 1997 and lived in an address in Toronto, Canada.

4. The Plaintiff denies that he is a Canadian resident. He said that he has been a Hong Kong resident; he went to Canada as an immigrant in 1989, landed there but returned to Hong Kong to work. After his marriage in 1993, his wife settled in Canada while he remained in Hong Kong. Although he is a landed Canadian immigrant, he spends a large proportion of his time in Hong Kong. On average, he spends two to three months in Canada each year.

Plaintiff not ordinarily resident outside Hong Kong

5. The Defendant refers to Reg. v. Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309. The Defendant accepts that the Plaintiff is ordinarily resident in Hong Kong but contends that the Plaintiff is also ordinarily resident in Canada as well.

6. For my part, I am not convinced that the Plaintiff is ordinarily resident out of Hong Kong, in Canada. Family is, no doubt, for many the most important part of one's life, but for the Plaintiff (and for many like him in Hong Kong), he chooses to live away from his family and conducts his daily life in Hong Kong. One is not concerned with his future plans but to consider whether he is ordinarily resident in Hong Kong at the time when the application is made. On the facts as disclosed, how can it be said that he habitually resides in Canada or customarily conducts his life there. I am not concerned with whether under Canadian law the Plaintiff is treated as an ordinary resident there. I am simply looking at the evidence disclosed to ascertain whether he is ordinarily resident out of Hong Kong.

Discretion should, in any event, not be in Defendant's favour

7. But even if, for the purpose of argument, the Plaintiff is also a resident in Canada, I would still not exercise the discretion in favour of the Defendant. I think in matters of ordinary residence under Order 23, one must look at things in the round. The object of Order 23 is to ensure that persons who are not ordinary residents should furnish security for costs so that the other party is not unduly prejudiced in the event of his being successful in the outcome of the case. In other words, it is intended to cover those plaintiffs who have no connection with Hong Kong, but merely choose to use the Hong Kong Courts as the forum of litigation. This is clearly not the case here.

8. I am not satisfied that a litigant in the position of the Plaintiff must show that he also has assets in Hong Kong which are available to satisfy the judgment. In this case, in any event, the Plaintiff shows that he has assets in Hong Kong. On the merits of the case, it just cannot be said that this is not a bona fide claim.

Change of address

9. As to the issue of change of address, the address disclosed in the writ was the Plaintiff's residence at the time the writ was issued. He moved to his brother's address in April 1999. The brother's address is disclosed in the Plaintiff's affirmation in opposing the Defendant's application for security. As to the other addresses disclosed in the business records and other documents, the Plaintiff had explained how they came to be used. No doubt the Plaintiff did not deal with the address of his residence between moving out of his home shortly after the issuance of the writ and living in his brother's flat. But he is, after all, addressing the allegations raised by the Defendant on the various addresses that were shown in the documents.

10. In my view, there is no evidence that the Plaintiff changed the address in order to avoid the consequence of the litigation.

Conclusion

11. Accordingly, the Master's decision is correct, and the appeal is dismissed. The summons now before me is also dismissed.