CAI DENING & ANOTHER v. CHIANG CHEW YUNG & ANOTHER

CACV 1649/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1649 OF 2001

(ON APPEAL FROM HIGH COURT ACTION NO. A416 OF 1995)

______________________

J U D G M E N T

______________________

1. This is an application for security for costs of the appeal by the Plaintiffs (Respondents) in this case. Chung J. had given judgment to the Plaintiffs against the Defendants for the sum of about HK$1.7 m. As against the 1st Defendant, US$5,880.00, HK$531,821.56, HK$562,600.00, HK$318,872.40, HK$3,857.00 in favour of the 1st Plaintiff and US$30,940.00 in favour of both of the Plaintiffs. The 2nd Defendant is required to pay HK$292,655.64 in favour of the 1st Plaintiff.

2. Both Defendants are also required to pay interest on the judgment sum at judgment rate from 13 January 1995 until payment and also costs on an indemnity basis. The estimated costs amounted to $2 m. The action was commenced in 1995 and the trial lasted for six days.

3. The Defendants are husband and wife. The 1st Defendant had paid into court HK$1.7 m. The Defendants have since July 1997 lived in the United States of America and have their properties in the United States of America. An injunction was granted in 1995 restraining the disposal of the assets in the accounts of the 1st Defendant and the joint account of the 1st Defendant and the Plaintiffs. In May 2000, the 1st Defendant applied to vary the injunction claiming to be poverty stricken and asked for the release of $500,000.00 on the frozen accounts for legal representation. This sum was released but the Defendants did not hire lawyers for the trial. There is no known assets of the Defendants in Hong Kong.

4. The money in court is clearly not enough to satisfy the judgment sum, interest and costs of the hearing below. The Plaintiffs have shown that the Defendants will not be able to meet the costs of the appeal if they fail in their appeal. The appeal is estimated to last two days. The estimated costs is $269,250.00

5. In my view the Defendants should pay into court $180,000.00 as security for the appeal. The payment is to be made within 28 days. Until such security is paid, the appeal will be stayed. In default of payment the appeal will be dismissed with costs of the appeal to be taxed and paid by the Defendants to the Plaintiffs. Costs of the application will be to the Plaintiffs.