RHONDA JEANINE POHN v. MAC RICHARD POHN AND OTHERS

CACV 269/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 2015

(ON APPEAL FROM HCA NO. 1381 of 2010)

___________________________

___________________________

__________________

JUDGMENT
__________________

Hon Lam VP (giving the Judgment of the Court):

1.  By a summons of 8 January 2016, the Plaintiff sought to strike out the 1^st Defendant’s Notice of Appeal of 11 December 2015. In the alternative, the Plaintiff sought security for costs in the sum of $500,000 against the 1^st Defendant. The Affidavit in support of the summons did not set out clearly the grounds for the striking out application. The court directed on 11 January 2016 the Plaintiff to file and serve skeleton submissions on that application and the 1^st Defendant to file affidavit in opposition after that.

2.  These documents were filed and after studying the same, the court directed on 2 March 2016 that the summons be processed on paper without any oral hearing and gave parties leave to file further submissions by certain dates. 

3.  No further submissions were filed.

4.  This is the decision of the court on the summons.

5.  In this appeal, the grounds of appeal are those set out in the Affirmation of the 1^st Defendant of 11 December 2015 (his Notice of Appeal did not set out any ground and referred to the affirmation instead).  We have considered these grounds together with the affidavits of 14 and 27 January 2016 of the Defendant.  Notwithstanding the high threshold in an appeal to upset the findings of fact made by a trial judge and the lack of evidence from the 1^st Defendant at the trial, who chose not to give evidence, we are not prepared to strike out the Notice of Appeal at this stage.  Such a power should only be exercised in a very clear case and we do not consider the present case comes within that category.

6.  But we do accept that the prospect of the 1^st Defendant succeeding in the appeal is not good. 

7.  We agree with Mr Yin that the 1^st Defendant had repeatedly made hopeless applications in the context of this piece of litigation.  He had come before this court seeking leave to appeal without any reasonable basis in HCMP 941 of 2015 and HCMP 3439 of 2015.  With reference to what had been said in HCMP 941 of 2015, the 1^st Defendant had not explained what had happened to the US$1.3 million which he had previously withdrew from the bank account before the grant of the injunction.  The injunction only secured assets which he should account to the Plaintiff.  The application for security for costs in these circumstances is not an abuse of process.  The evidence shows that the Plaintiff would have difficulty and will suffer undue delay in enforcing the costs order against the 1^st Defendant. Against these matters, we do not discern any countervailing reason for declining to award security. 

8.  The principles governing an application for security for costs on appeal were discussed in Chung Kau v Hong Kong Housing Authority [2004] 2 HKLRD 650.  Applying those principles, in light of what we said above, we consider it is just and appropriate to order the 1^st Defendant to pay security for costs in the present case.

9.  Having considered the skeleton bill and the information on counsel fee set out in the Affidavit of Mr Levy, we shall order the 1^st Defendant to pay security for costs in the sum of $450,000.  We make an order in terms of paragraphs 2 to 4 of the summons with the substitution of the figure of $450,000 with that of $500,000 in paragraph 2.  The costs of the summons shall be costs in the cause of the appeal.