PAUL KI PING KI AND ANOTHER v. SECRETARY FOR JUSTICE AND ANOTHER

FAMV No. 15 of 1999

MISCELLANEOUS PROCEEDINGS NO. 15 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 54 OF 1998)

_____________________

_______________________

DETERMINATION

_______________________

Mr Justice Bokhary PJ:

1. This is our determination covering both of these two applications which were heard one immediately after the other.

2. Each application arises out of a defamation action brought by Dr Ki. One action was brought by him as the 1st plaintiff together with a firm of his as the 2nd plaintiff. The other action was brought by him on his own as the sole plaintiff. Both actions were dismissed. An appeal to the Court of Appeal was brought against such dismissal in each case. In each case a single Justices of Appeal made an order for security for the respondents' costs of the appeal. In each case the Court of Appeal upheld the single Justice of Appeal's order. Each application now before us is for leave to appeal to the Court of Final Appeal against the Court of Appeal's decision.

3. The power which the single Justice of Appeal exercised is that contained in O. 59, r.10(5) which provides that: "The Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just". This power was exercised on the basis that the evidence showed that the appellants' finances were such that they would not be able to pay the respondents' costs if ordered to do so. The relevant principle is covered by a single sentence in 5 Halsbury's Laws of Hong Kong (1997) at p.941, para. 90.1109 stating that: "If the respondent shows that the appellant, if unsuccessful, will be unable through poverty or insolvency to pay the costs of the appeal, the practice is generally to order security for costs to be given".

4. We have considered Dr Ki's submissions with care. In neither case do we see any reasonable prospect of the Court of Final Appeal disturbing the Court of Appeal's refusal to disturb the single Justice of Appeal's exercise of discretion in ordering security for costs.

5. Accordingly both applications for leave to appeal to Court of Final Appeal are dismissed with costs.