DR. PAUL KI PING KI AND ANOTHER v. SECRETARY FOR JUSTICE AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 54 OF 1998

(on appeal from HCA No. A12669 of 1995)

1998, No. 54
(Civil)

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J U D G M E N T

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Leong, J.A. :

1. This is an appeal by the plaintiffs Dr. Paul Ki Ping-ki and Hong Kong Washington Company against an order made on 3rd June 1998 by Liu J.A. whereby he ordered the plaintiffs to furnish security for the defendants' costs of the appeal and in default, the appeal of the plaintiffs would stand dismissed. The security ordered was $160,133.00 in the case of the 1st defendant and $120,158.30 in the case of the 2nd defendant. The plaintiffs now seek to set aside this order.

2. This matter arises out of a claim by the plaintiffs against the defendants for damages for defamation. The plaintiffs claimed that in a Chinese article published in the 2nd defendant's newspaper, Government health officials stated that Dr. Ki committed an offence under the Undesirable Medicine Advertisements Ordinance by announcing publicly his discovery of a drug for treatment of AIDS and that Dr. Ki had immediately left Hong Kong to avoid investigation. The plaintiffs claimed that these statements were untrue and were defamatory.

3. At the pretrial review, the plaintiffs applied for a trial before a judge and jury. Yam J. refused the application and ordered a trial before a single judge. The trial was set down before Yeung J.

4. On 2nd February 1998, the 1st day of the trial, the plaintiffs applied to Yeung J. for the trial to be conducted in the Chinese language. This was acceded to by the judge and the trial proceeded in Chinese. Dr. Ki gave evidence on the 1st day and was cross examined by counsel for the 1st defendant.

5. On the 2nd day, when counsel for the 2nd defendant was about to cross examine Dr. Ki, Dr. Ki asked the judge to stop the trial on the ground that the action, being one of defamation, should be tried by a judge and jury. This was refused by the judge on the ground that the issue had already been decided by Yam J. and there was no appeal by Dr. Ki against that decision. Dr. Ki then asked the judge to stop the trial on the ground that the judge did not possess sufficient knowledge of the Chinese language to enable him to fairly decide whether the article was defamatory. This was again refused by the judge. The judge ruled that his proficiency in the Chinese language was a matter for the Court of Appeal and he saw no reason to stop the trial. Dr. Ki was given an option to have the trial conducted in English and to proceed.

6. But Dr. Ki indicated that he did not want his action to be tried before Yeung J. whether in Chinese or in English because he considered that Yeung J. was biassed against him. He applied for the case to be transferred to another judge. His application was refused by Yeung J.

7. Dr. Ki then refused to continue his evidence, whereupon both counsel for the defendants applied to dismiss the action and it was dismissed.

8. On 23rd February 1998, the plaintiffs filed a notice of appeal against the order of Yeung J. dismissing the action. The grounds are that the judge was not sufficiently proficient in the Chinese language and therefore not qualified to try the case, the judge was biassed and had no right to investigate into his financial affairs and the judge changed the meaning of the article by adding a character to it. The appeal was set down for hearing on 17th June 1998.

9. On 4th May 1998, the defendants applied by way of summons for an order that the plaintiffs be required to furnish security for the costs of the appeal within 14 days of the order and if the plaintiffs defaulted, their appeal would be dismissed. The summons was set down for hearing on 27th May 1998 but on 16th May 1998 Dr. Ki gave notice that he would not be able to attend the hearing on the date fixed. On 27th May 1998, Liu J.A. adjourned the hearing to 3rd June 1998 and notice of the adjourned date of hearing was served on Dr. Ki.

10. The summons was heard before Liu J.A. on 3rd June 1998. Dr. Ki did not appear at the hearing. The defendants contended that Dr. Ki was impecunious and there was no substance in his appeal. Evidence was adduced to show that Dr. Ki had failed to comply with a bankruptcy notice and as a result, a receiving order was made against him on 3rd December 1997 and that order was still subsisting. There was also evidence that Dr. Ki had failed to disclose his true address but there was no evidence that he was living outside the jurisdiction. Liu J.A. granted the application and made the order on security for costs now under appeal.

11. The order was subsequently served on Dr. Ki but he failed to comply with the order to furnish the necessary security. His appeal against the order of Yeung J. thus stands dismissed.

12. The grounds of the appeal against the order of Liu J.A. are Yeung J. is not proficient in the Chinese language; as a result, the trial had to be aborted. In addition, the judge had added a character to the text and had changed the meaning of the article. Further, the judge had asked the plaintiff too many questions and sided with the defence. Dr. Ki contended that on these grounds, security for costs should not have been ordered. These grounds, it should be noted, are the same as those Dr. Ki adduced in support of his main appeal. Today Dr. Ki maintains that he should not be ordered to furnish security for costs because he had been unfairly treated in the proceedings and it was a means by the plaintiffs to stop his trial.

13. The general rule is to order security for costs against an appellant who would be unable through impecuniosity to pay the costs of the appeal, if unsuccessful, without proof of any other special circumstances. The merits of the appeal is a factor to take into account when the court considers whether to make an order for security.

14. In the present case, there is nothing in the transcript or otherwise, to indicate that the judge was not proficient in the Chinese language and not qualified to try the case in the Chinese language. The history of the case shows that Dr. Ki had been fairly treated at all stages of the proceedings. Dr. Ki had discontinued his claim by refusing to continue with his evidence. His appeal against the order of Yeung J. has no merits and is unlikely to succeed. On the other hand, there was unchallenged evidence before Liu J.A. that Dr. Ki had no means and was impecunious. His grounds of appeal has not raised any arguable issues neither has he shown that Liu J.A. was wrong in exercise of his discretion in granting the order. In all the circumstances of this case, the order of Liu J.A. was properly made and the appeal should be dismissed.

Rogers, J.A.:

15. I agree and have nothing to add.

Godfrey, J.A. :

16. The grievance of the plaintiffs here is that their case was tried by a judge who, they allege, was biased and incompetent. It is in those circumstances, say the plaintiffs, that they chose to abort the trial. The trial was unfair. So they seek to appeal, no doubt wanting a new trial. They should not, they say, have been ordered to give security for the defendants' costs of the appeal.

17. This court is presently concerned only with the issue of security for costs, not the merits of the plaintiffs' case. But, as Leong, J.A. has pointed out, it appears from the material before us that the plaintiffs' grievance is in fact wholly unfounded.

18. In those circumstances, I agree that we must dismiss this appeal. The order for security for costs was properly made. The plaintiffs are impecunious and if they lose the appeal would be unlikely to be able to pay the defendants' costs. This is the ground on which the defendants sought security for costs. They were plainly entitled to such security.

19. The appeal will therefore be dismissed.

20. As to the costs of the appeal, it is said for the defendants that the costs should follow the event. That piles yet another unfairness, say the plaintiffs, upon the unfairness they have already suffered. But, nevertheless, we cannot depart, on the material before us, from the usual rule that the costs follow the event, and the defendants must have their costs.

21. What troubles me is a more profound problem. The plaintiffs are litigants in person. Litigants in person aggrieved by decisions against them tend to make repeated and hopeless applications of one sort and another to the court, at the expense of their opponents; all too often they are unable to meet orders made against them for the costs of those applications. The problem has not yet arisen in the instant case, but, anticipating it, I propose to draw attention to the case of Grepe v. Loam (1887) 37 Ch. D. 168, from which it can be seen that in a proper case, where applications which are wholly unfounded have been made, and dismissed with costs, the court can protect the respondents by making an order that the applicant be not allowed to make any further application in the proceedings without leave being first obtained. The order will provide that if notice is given of any such application without such leave being obtained, the respondents are not to be required to appear upon such an application, and it shall be dismissed without being heard. The time may come in these proceedings when such an order may need to be made. We do not think it appropriate to make such an order today. But it is right, we believe, that attention should be drawn to this possibility. Further than that, we neither can nor should go at this stage, and we will contend ourselves with simply making an order that this present appeal be dismissed with costs.