TSE KAI BOR v. TSE KAI KIT

HCA1353/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1353 OF 2003

---------------------

----------------------

------------------------

D E C I S I O N

-------------------------

1. This is the defendant’s application for security for costs.  It comes before a judge instead of the master because the case has been set down for trial.  The ground of the application is that the plaintiff is ordinarily resident outside the jurisdiction and/or has no fixed assets in Hong Kong.  The evidence on which it is based is :

(1)	the fact that in June 2002, a solicitor then acting for the Fung Lung Plastic Company Limited in an application to cease to act, affirmed that the plaintiff, then a director of that company had told him in October 2000 that he had emigrated to Canada;
(2)	the fact that in February 2003 the plaintiff told the defendant that if he failed in these proceedings, he would lose nothing because he could go back to Canada and the defendant would have to bear his own costs; and
(3)	the fact that the plaintiff is not the registered owner of the premises at three addresses used by him in Hong Kong.

2. The evidence of foreign residence, given that the plaintiff is a person, presumably, as much connected to Hong Kong originally as his brother the defendant, is not strong.  There is no reason of evidence from the plaintiff but it is understood that he will deny that he is ordinarily resident out of the jurisdiction.  In any event, the defendant’s evidence of foreign residence of the plaintiff was available in 2003.

3. At the question of security was raised in November 2003.  The defendant asked for security.  The plaintiff through solicitors denied foreign residence and said that any application would be opposed. 

4. At the checklist hearing before the master on 1 September 2004, the defendant’s solicitor confirmed that no application for security for costs would be made.  The case was said to be ready for trial.  At a further hearing for leave to set down on 20 October 2004, leave was granted to set down within 42 days for a 3-day trial in the running list.  Then on 14 June 2005, the plaintiff applied to set down out of time and the defendant’s solicitors endorsed their consent on the application.  The present summons was filed on 17 June 2005.  

5. It is true that security may be ordered at any time.  While delay is not necessarily important that it may be relevant to the court’s exercise of its discretion.   In particular this is so where there may be prejudice to the defendant.  What will happen, of course, if this application is allowed is that the trial, already set down, will be delayed, and this is after the defendant has told the court, knowing what evidence he had available, that no application for security would be made. 

6. It is said that the application is made now, because while the plaintiff had accused the defendant of forgery, the police have now investigated the matter and their expert has given the opinion that the allegedly forged signatures are genuine.  This is simply irrelevant, because the case as pleaded is based on fraudulent misrepresentation and there is no pleading of forgery. 

7. It is said that the defendant has a strong likelihood of success in the proceedings.  According to the authors of the Hong Kong Civil Procedure at paragraph 23/3/3, this a major matter for consideration.  This is accepted up to a point.  But see the dicta of Sir Nicolas Browne-Wilkinson VC in Porzelack K.G. v. Porzelack (U.K.) Ltd [1987] 1 WLR 420 at 423 who said :

“Undoubtedly, if it can clearly be demonstrated that the plaintiff is likely to succeed in the sense that there is a very high probability of success, then that is a matter that can be weighed but for myself I deplore the attempt to go into the merits if the case unless it can be demonstrated one way or another that there is a high degree of probability of success or failure.”

8. Here, of course, the probability or success of failure is exactly what it has been all along.  There is no fresh evidence of that, any more than there is fresh evidence of foreign residence.  All this was known before the checklist hearing and the application to set down.  If the defendant wanted to apply, he should have done so then.  I do not see that he should be allowed to do so at this stage, when the result will be to delay at trial.  The summons is accordingly dismissed. 

9. I have considered that what has been said in the plaintiff’s skeleton argument regarding costs which he says should be awarded against the defendant’s solicitor.  I think this application should not have been taken out but I do not think that it is a matter for which the solicitor should pay personally.  I think it was a mistake rather than a deliberate abuse of process.  I will award costs against the defendant, to be taxed if not agreed.