LEUNG CHIU MING v. THE LAW SOCIETY OF HONG KONG AND OTHERS

CACV 225/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 225 OF 2004

(ON APPEAL FROM HCA 7603 OF 2000)

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D E C I S I O N

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Hon Tang JA (giving the Decision of the Court):

1. The plaintiff’s claim against the defendants for defamation was struck out by Master A. Ho on 14 November 2002.

2. The plaintiff’s appeal to Chung J was dismissed by him on 17 June 2004.  By notice of appeal dated 21 July 2004, the plaintiff appealed against the decision of Chung J.

3. On 18 November 2004, Yeung JA ordered security for costs in the sum of $100,000 to be given by the plaintiff in respect of the appeal.

4. This is the plaintiff’s application to review Yeung JA’s decision.

5. The plaintiff has been adjudicated bankrupt.  However that is subject to appeal.

6. But, even disregarding the bankruptcy, it is clear from what the plaintiff has told us that he is unlikely to be able to pay the costs of the appeal should he be unsuccessful. 

7. He is now working as a salesman with a basic salary of $5,000.  He is also paid commission on successful sales.  He told us that he has just finished a three-month probation when his basic pay was $3,500 per month.  But his average total monthly income was below $10,000.  He has savings of about $5,000 and no other assets. 

8. On such evidence, we believe security for costs should be ordered in the absence of exceptional circumstances.  The only exceptional circumstance relied on by the plaintiff is the strength of his appeal.

9. This is what Yeung JA said about the plaintiff’s appeal :

“	11.	在特殊情況，例如案件背景顯示一名上訴人勝訴機會甚高，法庭有酌情權免卻該名上訴人提供上訴訟費保證的責任。
	12.	在目前階段，本席無需就案件是非曲直，或上訴成功機會率作出絕對準確判決。本席亦不適宜作出該項判決。
	13.	有需要時，上訴法庭會根據雙方論點，作出判決。本聆訊並非正式上訴聆訊。
	14.	但本席需指出，根據有關資料，上訴人上訴成功機會甚低。上訴人指法庭不應作出假設，以他的上訴不會成功，下令他支付訟費保證。但在上訴訟費保證的申請，法庭都要，亦必需作出該假設。”
	Translation:
“	11.	In exceptional circumstances, say, where the background of the case show that the appellant has a high chance of winning the appeal, the court might exercise its discretion to relieve the applicant from his obligation to provide security for costs.
	12.	At this stage of the proceedings, it is unnecessary for the court to definitively decide the chances of the appeal succeeding.  Nor is it appropriate for the court to do so.
	13.	The Court of Appeal will give its judgment on the basis of the arguments put forward by both parties.  This hearing is not the hearing of the appeal.
	14.	However, I must point out here that according to the information now available, the appellant’s chances of success in the appeal is very low.  The appellant remarked that the court should not hypothesize that his appeal would not succeed and order him to provide security.  But on an application for security for costs in respect of an appeal, the court has to and is required to make such a hypothesis.”

10. With respect, we agree.

11. It follows that the application to review the decision of Yeung JA is dismissed with costs.  Such costs to be taxed unless agreed.

12. The application was made out of time but it is unnecessary for us to deal with the plaintiff’s application for extension of time because we would dismiss the application even if it had been made within time.