DR PAUL KI PING KI v. NEXT MAGAZINE PUBLISHING LTD AND OTHERS

cacv 33/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 33 of 2004

(on appeal from HCA NO. 4173 of 2001)

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J U D G M E N T

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Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  The plaintiff in this application appeared in person.  It would appear that his application was for an extension of time to appeal the order of Cheung JA sitting as a single judge of the Court of Appeal granting the application of the 1^st, 3^rd and 5^th defendants (“the defendants”) that the plaintiff pay security for costs in the amount of $100,000.  

3.  For the purposes of this application, the plaintiff had filed 3 documents, namely, (1) a notice of motion dated 6 July 2004 for leave to appeal to the Court of Final Appeal; (2) a notice of intended application for leave to appeal to the Court of Final Appeal also dated 6 July 2004; and (3) a summons dated 19 July 2004 for relief described in the following terms:

“I should have the right to have a trial before a jury without security deposit.  Even if I needed a security deposit, the Defendants owed me $200,100 in a HCA 11533/96 civil case which I have won.  Extension of time to appeal.”

The plaintiff can only proceed with his appeal from the order of A Cheung J who had dismissed his claim for damages for libel (“the substantive appeal”) by first having the security for costs order set aside if, as would appear to be the case, he is unable or unwilling to meet the security ordered.  Further, an appeal from an order made by the single judge of the Court of Appeal acting by virtue of section 35(1) of the High Court Ordinance, Cap 4 does not lie to the CFA but to the Court of Appeal.  So, notwithstanding the reference in the notices for leave to appeal to the CFA, the plaintiff’s application has been treated as an appeal from Cheung JA’s order for security for costs.

4.  Cheung JA’s order was made on 11 June 2004.  Time for appealing expired on 21 June 2004.  See Order 59, rule 14(12).  The plaintiff’s appeal was not lodged until 6 July 2004.  Counsel for the defendants took the point that the appeal was out of time.  The delay involved is 15 days.  In considering whether or not the Court should grant an extension of time, the reasons for the delay as well as the merits of the appeal have to be considered.  The plaintiff’s explanation for the delay was that he did not receive the printed copy of the decision until 18 June 2004.  Counsel for the defendants pointed out that that did not explain why nothing was done until between 18 June and 6 July 2004.  Be that as it may, the more important consideration to my mind is whether the appeal from the order granting security for costs has merit.

5.  It is the plaintiff’s contention that he was not impecunious as Cheung JA had thought.  It was his case that the 1^st defendant is indebted to him in the sum of $200,100 as well as costs in HCA 11533 of 1996 which costs, to date, have not been taxed.  But as Cheung JA noted in paragraph 10 of his judgment, the plaintiff was himself indebted to the 1^st defendant in the sum of $906,185.40 in respect of taxed costs in another action (HCA 8071 of 1994).  A bankruptcy petition had in fact been presented against the plaintiff in 1997 in respect of those unpaid costs and the 1^st defendant had submitted a proof of debt of $1,060,882.66 being the taxed costs plus interest.  By order of the Registrar, this proof was subsequently amended by deducting from it the sum of $200,100 with interest.  In proceedings before Yuen J (as she then was), it was held (on 2 May 2000) that the 1^st defendant was entitled to set off the sum of $200,100 against the amount the plaintiff owed the 1^st defendant in HCA 8071.  That decision was upheld by this Court (Leong and Woo JJA) on 13 July 2000 and by the Appeal Committee of the CFA on 8 December 2000.  It is therefore clear that there is no substance in the assertion that the defendants (or any of them) are indebted to the plaintiff in the sum of $200,100.

6.  So far as the costs awarded to the plaintiff in HCA 11533 are concerned, the right to such costs constituted property vested in the trustee upon the plaintiff’s bankruptcy.  Whilst it was the Official Receiver’s view that they formed part of the plaintiff’s estate and a set-off of the taxed costs in the plaintiff’s favour in HCA 11533 would be allowed against the taxed costs in the 1^st defendant’s favour in HCA 8071, the set-off has never been triggered because, as noted above, the costs in the plaintiff’s favour have never been taxed.

7.  The plaintiff was discharged from bankruptcy on 13 August 2002.  However property once vested in the trustee bankruptcy would not revest in the bankrupt upon discharge.  See Daemar v Industrial Commission of New South Wales (No 2) (1990) 99 ALR 789 at 795.  Section 30A(8) of the Bankruptcy Ordinance, Cap. 6 is similar in effect to section 152(1) of the Bankruptcy Act 1966 (Cth) which was the basis of the decision by the Court of Appeal in Daemar.  Accordingly, the plaintiff cannot derive any assistance from the costs order in his favour.

8.  Thus, leaving aside the absence of a reasonable explanation for the delay, the fact that the plaintiff has failed to demonstrate that there is merit in his appeal from the order for security of costs must inexorably lead to a refusal of his application for an extension of time to appeal that order.  I would therefore dismiss the plaintiff’s appeal.

9.  It becomes unnecessary to consider whether, were an extension to be given, the order made by Cheung JA should be disturbed.  Suffice it to say that it will have to be shown in such case that the judge has erred in principle: it is not a question of this court exercising the discretion afresh.  I would also add that whilst the plaintiff may feel a sense of disappointment in not being able to pursue the substantive appeal as a result, the reality is that the plaintiff has not demonstrated a viable prospect of his succeeding in the substantive appeal.  This is because the plaintiff has not shown that the law as stated by the judge in the substantive appeal was wrong.  The authorities relied on by A Cheung J are to the effect that where a claimant to a libel action who has not been named is only identifiable by reason of extraneous facts that are not generally known, evidence must be adduced to show that the words had been communicated to persons with such extraneous knowledge.  That evidence was not forthcoming at the trial below.  Accordingly, any appeal is likely to be doomed to failure.

10.  I would also make an order nisi that costs be to the defendants.