MAK SHIU TONG v. YUE KWOK YING AND ANOTHER

CACV 199/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 199 OF 2002

(ON APPEAL FROM HIGH COURT ACTION NO. 3758 OF 1998)

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

1. This is the plaintiff's application for leave to appeal to the Court of Final Appeal against our judgment given on 2 June 2003.

2. In our judgment we set aside the decisions of Yuen JA who ordered security for costs of the appeal against the 1st defendant and the consequential dismissal of the 1st defendant's appeal upon his failure to provide the security. We did so on the merits of the appeal which were also gone into by Yuen JA.

3. The plaintiff accepts that the appeal does not involve a matter of great or general public importance but submits that great injustice is caused to him because of the wrong approach undertaken by us. This justifies an appeal to the Court of Final Appeal on the 'or otherwise' ground.

4. First it is said that an order for security for costs is an exercise of discretion and we had not identified any wrong exercise of discretion by Yuen JA. Reliance was made of the salutary principle stated in cases such as Wren v. Braunston Canal Services Ltd. and others (The Times 23 November 1990) and Jones v. Smith (Decision of English Court of Appeal, 6 May 1994) that once a single judge of the Court of Appeal refused an application for extension of time to appeal the full court should not set aside the order unless it can be shown that the order was plainly wrong or the judge had misdirected himself.

5. The matter can be dealt with shortly. Yuen JA had dealt with the merits of the appeal. The reasons why the matter was revisited by us was because of a rather exceptional situation in that the 1st defendant had put forward a new case which was not raised before.

6. This is a case which from the beginning to end is a striking out on pleadings, namely, the defence. The original defence was drafted by the 1st defendant personally. Later on, he was legally represented. Through the inadequacy of the 1st defendant's legal advisers, the defence was only properly formulated when it came before us, although, as we have pointed out in the judgment, the 1st defendant had already sufficiently identified the factual matters in support of the new plea.

7. Once we decided that there was a meritorious appeal based on the new issue then obviously the basis in which the discretion was exercised came into focus. We do not understand Yuen JA to mean that she would have ordered security in any event. In fact this would be contrary to her approach. This being the case, we cannot simply brush aside the matter on the ground that the new matter was not argued before her. In construing a judgment one has to look at the whole of the judgment and not merely whether some formula words like 'there was a wrong exercise of discretion' had been used or not.

8. Second it is said that we had wrongly approached the merits of the case. We decided the case on matters not previously raised before either Chung J or Yuen JA.

9. We have already dealt with the exceptional circumstances in this case. Even if the English approach on striking out in defamation cases is to be adopted in Hong Kong, clearly a party can only succeed in a plain and obvious case. In this case the court was obviously concerned with the substantial merits of the case rather than simply dealing with pleading points.

10. The case here is simply that we had refused to order security for costs of the appeal. As pointed out in our judgment, if the 1st defendant relies on a new case which was not pleaded in the hearing before, obviously this will have an implication on costs. However, while he may have to bear the costs of the amendment and may be deprived of the costs of the appeal if the outcome of the appeal depends on the new grounds, it does not necessarily follow that he may have to bear the plaintiff's costs of the appeal even if he (i.e. the 1st defendant) is successful in the appeal. In our view the plaintiff has not made out a case to satisfy the requirement under the 'or otherwise' ground. We will dismiss the application with costs.