WANG HSUAN HAN v. CATHAY PACIFIC AIRWAYS LTD

HCA 1019/2022

[2024] HKCFI 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1019 OF 2022

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DECISION

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INTRODUCTION

1.  By summons filed on 21 March 2023, the defendant applied for security for costs.

2.  On 20 July 2023, a Master ordered the plaintiff to pay security for costs in the sum of $300,000.

3.  The plaintiff then appealed to this Court.  The appeal hearing was held on 30 January 2024 (“the Appeal Hearing”).  Her appeal was dismissed by a Decision dated the same date (“the Decision”), under which it was ordered that:

(1)  The plaintiff do provide security for the defendant’s costs of this action up to and including the following Case Management Summons hearing in the sum of $300,000 by paying the same into Court by 4pm on 19 March 2024.

(2)  Until such payment is made and notice thereof given to the Registrar and to the solicitors for the defendant (such notice shall be given by the plaintiff on the same day as the payment is made), all proceedings in this action are to be stayed.

(3)  In default of the plaintiff making such payment as aforesaid within the time specified above or within such further time as the court may for special reasons allow, the action herein against the defendant do, upon the solicitors for the defendant certifying such default to the Registrar, stand dismissed without further order.

(4)  In the event that the action against the defendant is dismissed in the circumstances provided for above, the plaintiff do pay to the defendant its costs of the action (including all costs reserved), such costs to be taxed if not agreed.

4.  By summons filed on 2 February 2024 (“the Summons”), the plaintiff applied for leave to appeal.  She intended to ask the Court of Appeal to set aside the Decision altogether, without requiring her to pay any security for costs.  She also asked for leave to adduce further evidence on appeal.

LEGAL PRINCIPLES

5.  The requirement for granting leave to appeal is set out in section 14AA(4) of the High Court Ordinance (Cap 4, Laws of Hong Kong).  It is trite that leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. 

6.  It is also well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 129 at [17]).

7.  In respect of an appeal from an order for security for costs, Yuen JA held in So Yee Mui & Ors v Lam Pui Chi (CACV 283/2010, unreported, 28 June 2011) that:

“[…] it is well-established law that an order for security for costs is made in the exercise of the court’s discretion and generally an appellate court will not interfere unless it has been shown that there has been an error of law, or a misapprehension of material facts, or errors in matters taken or not taken into account, or the exercise of discretion was plainly wrong.”

8.  In relation to the plaintiff’s application to adduce new evidence on appeal, Lam VP (as he then was) has given the following guidance in Man Lin Heung The Administratrix of the Estate of Man Kwai Yin also known as Man Kwai Yin v. 梁根林& Another [2019] HKCA 846:

“Procedurally, application for leave to adduce new evidence could not be entertained until after leave to appeal has been granted and it is a matter for the Court of Appeal in deciding whether the new evidence should be admitted. However, an applicant in an application for leave to appeal can support such application by reference to new evidence if he can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall. Thus, a judge (including a first instance judge) processing the application for leave would have to examine if the new evidence could arguably satisfy these criteria. If these criteria are not satisfied, such evidence should be disregarded for the purpose of the application for leave to appeal.”[1]

9.  It was therefore held in Man Lin Heung (supra) that the applications for leave to adduce new evidence for the purpose of the appeal were misconceived.

10.  It is also trite that pursuant to the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489, further evidence is admissible on appeal only when such evidence:

(1)  could not have been obtained with reasonable diligence for use at the hearing below (“the Ladd v Marshall first condition”);

(2)  would or might, if believed, have an important influence on the result of the case, though it need not be decisive (“the Ladd v Marshall second condition”); and

(3)  is apparently credible though it need not be incontrovertible.

THE NEW EVIDENCE

11.  As explained above, it is pre-mature for the plaintiff to apply for leave to adduce new evidence at this stage.  At the moment, this Court should consider whether she can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall.  If she fails to do that, the new evidence should be disregarded for the purpose of this application for leave to appeal.

12.  In the plaintiff’s affirmation in support of her application to adduce new evidence on appeal filed on 2 February 2024, she has referred to 10 exhibits which she seeks to adduce as new evidence.  However, in fact some of them have already been placed before this Court at the Appeal Hearing properly and have been considered.  The only items which have not been considered by this Court or which were not adduced at the substantive hearing are set out in the following table[2]:

Exhibit No.	Description	Date	Remarks
3	入境事務處發出之原告人申請延期工作簽證處理中之證明	26.08.2021	This was not placed before the Master. It was disclosed in the plaintiff’s Bundle B[3] at the Appeal Hearing, but was not considered by this Court – see footnote 1 of the Decision.
5	被告人招募台灣組員官方招募網頁	01.02.2024	This document only existed after the hearing before Master.  A nearly identical document (without Chinese translation and with a print-out date of 23 January 2024) was included in the plaintiff’s Bundle B at the Appeal Hearing, but was not considered by this Court – see footnote 1 of the Decision.
6(1)	入境事務處通知受理原告人上訴之來電紀錄	23.09.2021	This was not placed before the Master. It was included in the plaintiff’s Bundle B at the Appeal Hearing, but was not considered by this Court – see footnote 1 of the Decision.
6(2)	原告人應入境事務處要求呈交的上訴文件資料	27.09.2021	This item comprises of a letter dated 27.09.2021 from the plaintiff to the Immigration Department and its appendices. The letter and some of the appendices had already been placed before the Master and at the Appeal Hearing, but some other appendices were not, and these “new” appendices were produced by the plaintiff before this Court at the leave to appeal hearing for the first time.
6(3)	入境事務處發出之原告人申請延期工作簽證上訴處理中之證明	02.09.2021	This was not placed before the Master. It was included in the plaintiff’s Bundle B at the Appeal Hearing, but was not considered by this Court – see footnote 1 of the Decision.
7(1)	入境事務處網站「合法受僱」說明表格	-	Not placed before the Master or this Court.
7(2)	原告人之香港身份證和有效護照	-	This item consists of a copy of the plaintiff’s HKID card and passport. The HKID card was not placed before the Master. It was included in the plaintiff’s Bundle B at the Appeal Hearing, but was not considered by this Court – see footnote 1 of the Decision. The passport copy is already in evidence.
7(3)	入境事務處發出原告人不受任何逗留條件限制之證明	02.09.2021	See item 6(3) above.
8	被告人發出之原告人 2021 年9 月薪資單	28.10.2021	Not placed before the Master or this Court at the Appeal Hearing.
9	描述原告人 2021年9月至2023年03月薪資戶對帳單	24.09.2021 – 24.03.2023	Not placed before the Master or this Court at the Appeal Hearing.
10	原告人為本案訴訟支付之機票費用收據	26.10.2022, 31.01.2023, 24.03.2023, 04.06.2023, 23.01.2024	These were not placed before the Master. Save for the first 2 pages of the exhibit (i.e. an email dated 26.10.2022 regarding a flight on 5.11.2022), the other documents were included in the plaintiff’s Bundle B at the Appeal Hearing, but were not considered by this Court – see footnote 1 of the Decision..

13.  I accept Mr Chan’s argument that the Ladd v Marshall first condition is apparently not satisfied in respect of all the items (except item 2 which is dated 2 February 2024 and the last document under item 10 which is dated 23 January 2024 (“the Excepted Items”). The plaintiff explained that she did not know that it was necessary to apply for leave to adduce new evidence before this Court when the appeal from the Master was heard.  However, that is not an acceptable reason. 

14.  I also take the view that the Ladd v Marshall second condition is not satisfied.  The purpose of the plaintiff in adducing the new evidence (including the Excepted Items) is to argue that it can be clearly demonstrated that she has a high degree of probability of success.  However, I cannot see how the new evidence can show that the conclusion that “It is at least arguable that her claim that her employment relationship with the defendant has not been validly terminated is contradicted by the Release Agreement which the parties entered into on 20 September 2021”[4] is wrong.  It should be borne in mind that threshold of demonstrating probability of success in the context of a security for costs application is very high.

15.  Since the new evidence cannot arguably satisfy the Ladd v Marshall conditions, such evidence should be disregarded for the purpose of the application for leave to appeal herein.

LEAVE TO APPEAL – DISCUSSION

16.  As pointed out by counsel for the defendant, the plaintiff has not put forward any draft ground of appeal at all.  The plaintiff mainly seeks to re-argue her points on merits of her claim which have already been made at the Appeal Hearing. 

17.  In any event, the plaintiff has failed to persuade this Court that this is a case in which the Court should not order her to pay security for costs by reason of the strong merits of her claim, and she has not explained why this Court has been “plainly wrong” in the exercise of its discretion.

18.  The present application for leave to appeal is therefore a non-starter.

19.  The plaintiff now also says that she is willing to reside in Hong Kong for the purpose of this case.  However, that is totally beside the point.  This will not alter the fact that she was ordinarily resident out of the jurisdiction at the time of the application, and of the Appeal Hearing.

20.  The plaintiff further alleged that it is unfair to require her to own landed property here in Hong Kong before she has the right to continue with this litigation.  I regret to say that she has totally misunderstood the law.  It is not a prerequisite that she has to own landed property in Hong Kong before she is allowed to proceed with the action herein.  However, this Court has to take into account the fact that she has no assets within the jurisdiction when deciding whether she has to pay security for costs.

21.  For reasons of the aforesaid, I am not satisfied that the intended appeal has any reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. 

ORDER

22.  The plaintiff’s application for leave to appeal should therefore be dismissed.

COSTS

23.  Costs should follow the event.  I therefore order the plaintiff to bear the defendant’s costs of the Summons.  Such costs shall be assessed summarily pursuant to Order 62 rule 9A(1)(a) of the Rules of the High Court (Cap.4A).

24.  The defendant asked this Court to order that its costs be assessed on indemnity basis, on the grounds that this application is not only procedurally improper (in that no grounds of appeal have been identified), but also totally devoid of merit on its substance, and therefore should not have been brought. 

25.  It is trite that the Court’s discretion to order indemnity costs should not be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be appropriate[5].  While I agree that the application for leave to appeal herein has the features as described by the defendant’s counsel in the preceding paragraph, I am of the view that the Court should bear in mind that the plaintiff is acting in person and does not have the benefit of legal advice.  There is nothing herein which may lead to the conclusion that the plaintiff is knowingly abusing the process of the court.  In these circumstances, I do not think the plaintiff should be visited with an indemnity costs order.

26.  For the purpose of summary assessment of costs, the defendant has lodged and served its Statement of Costs dated 5 March 2024. The plaintiff shall lodge and serve her Statement of Objection within 7 days. The summary assessment will then be conducted on paper thereafter, no matter whether any Statement of Objection is lodged by the plaintiff within time.  The costs assessed shall be payable by the plaintiff within 14 days after assessment.