PAUL KI PING KI AND ANOTHER v. ORIENTAL DAILY PUBLISHER LTD. AND OTHERS

CACV 201/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 1999

(ON APPEAL FROM HCA No. 9748 OF 1995)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The appellants Dr. Paul Ki Ping Ki (1st Plaintiff) and Paul Ki Ping Ki trading as Hong Kong Washington Company (2nd Plaintiff) commenced proceedings against the respondents for damages in defamation. After a four-day hearing before Deputy Judge To, the 1st Plaintiff's claim was struck out with costs to the defendants on an indemnity bases. The 2nd Plaintiff obtained judgment against the 1st to 4th defendants but was ordered to bear the jury expenses. The damages awarded to the 2nd Plaintiff was a nominal amount of $1.

2. On 20th July 1999 the 1st and 2nd Plaintiffs appealed against the judgment of Deputy Judge To. The grounds are: firstly, the Judge was wrong to strike out the 1st Plaintiff and to direct the jury to award nominal damages to the 2nd Plaintiff since in a different case involving the same article against a magazine, they obtained $200,100 damages. Secondly, because the 6th defendant was employed by the parent company of the 1st defendant and had helped the other defendants in the preparation of the article the subject matter of the complaint, the plaintiffs should not be required to pay the costs of the 6th defendant. Finally, the defendants and their counsel had lied to the court.

3. Dr. Ki was adjudged a bankrupt on 13th August 1998 and has not been discharged. Since the date of the judgment he has not settled the costs against him despite various letters of demand. The respondents' representatives have estimated that their costs in the appeal would be $175,250. They have written to the plaintiffs requiring them to provide this sum as security for the costs of their appeal but so far they have not responded to the letter.

4. On 6th August 1999, the respondents applied for security for costs of their appeal on the ground that the plaintiffs were impecunious and that their appeal was unfounded. On 3rd September 1999, on the application by the Respondents, Mayo, J.A. ordered the appellants to furnish security for costs in the sum of $175,250 and in default the appeal shall stand dismissed.

5. The plaintiffs appeal against the order of Mayo, J.A. on the ground that damages amounting to $200,100 and costs were awarded to them in another case, and in the present case where the jury had found the respondents liable in defamation nominal damages should not have been awarded. He also states that the damages awarded in that case are being held by the Official Receiver. This could be released to provide security for costs, if necessary. The other ground of appeal complains that Deputy Judge To acted unfairly at the trial.

6. We agree that Dr. Ki being a non-discharged bankrupt may be unable to pay the respondents' costs in the appeal. But on what has been put before us, we see some merits in the appeal on the issue of striking out the 1st plaintiff and on quantum. The law as to application for security for costs on appeal is well settled and is stated in Order 59 rule 10, paragraph 33 of the Rules of High Court. This states that it is a settled practice to require security for costs to be given by an appellant who has been unable through impecuniosity to pay the costs of the appeal if unsuccessful without proof of any other special circumstances. However, the court has a discretion. The question is whether awarding security would amount to a denial of justice to the appellants.

7. We consider in the present case the circumstances are not such as to warrant this court to order the appellant to secure the cost of the appeal of the respondents. Accordingly, we allow the appeal and set aside the order of Mayo, J.A. with no order as to costs.