PATRICK JAMES JOSEPH O’MARA v. CHIN SHAU TONG

HCA 1253/2019

[2021] HKCFI 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1253 OF 2019

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D E C I S I O N

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1.  Recorder Manzoni SC made an order dated 8 December 2020 for the plaintiff to provide security for the defendant’s costs in this action up to and including the stage of close of pleadings in the sum of $316,200 by payment into court within 28 days. The time for payment-in expires tomorrow, ie 5 January. Until such security is given, all further proceedings be stayed. Should the plaintiff fail to give the security, the action shall be dismissed with costs to the defendant.

2.  The plaintiff now seeks extension of time for 28 days to comply with the order for providing security.  The plaintiff explained that he had spent three hours in his bank on 31 December to try and expedite a transfer of US$70,000 to Munros’ client account in Hong Kong.

3.  The instructions to make transfer of funds to Hong Kong can only be given in person at the bank.  That bank is a personal bank account of the plaintiff held with Halyk Bank in Kazakhstan.  The staff of that bank would not allow the plaintiff to take pictures of their computer screens or copies of their internal papers confirming instructions to transfer funds to the solicitors’ bank account.  There is strict due diligence process at the bank, such that the transfer could take up to 2 weeks to process.  The process time could be longer for transfers of more than US$50,000.

4.  The plaintiff instructed his solicitors that the funds he was expecting to receive was deposited into the bank only on 23 December 2020.  The plaintiff instructed his solicitors that international transfers out of Kazakhstan can take up to 2 weeks, especially since there were intervening holidays; in the present case, the New Year.  The plaintiff asks for extension of time in order to meet the security order.

5.  It is very unsatisfactory to put in a last-minute application of this kind on New Year’s Eve and dump it at the door of the other side’s solicitors after office hours and ask the court to hear it on the following working day. It is also unsatisfactory that the affirmation in support was not made by the plaintiff himself, and the documents that contain material information showing that the plaintiff has a bank account in Kazakhstan with funds to meet the security order are in a foreign language that has not been translated.

6.  The defendant opposes the application.  I have considered them.  As Mr Lee for the defendant submits, the position that the plaintiff finds himself in is self-induced.  He only went to the bank two working days before the due date for provision of security.  In fact, he had since 23 November 2020 been expecting to pay security for costs to the defendant even before Recorder Manzoni SC made his order.  It is only common sense that with funds overseas, it would take more time for transfers to effect than if the transfers were made in Hong Kong from one bank account to another. 

7.  There is also of course prejudice to the defendant where security is not provided because the action could have been dismissed by tomorrow.  The plaintiff has invited the court to consider the merits of the defence to ask the court not to stifle his claim because of a failure to provide security.  It is not the duty of the court to consider the merits of the defence in an application like this. 

8.  Recorder Manzoni SC has made an order for provision of security.  The court is wary about dismissal of a claim where somebody cannot provide security but there is some evidence of security available and it is only a question of time for payment to meet the order for security. 

9.  I am prepared to give a chance to the plaintiff with conditions:

(1)  The plaintiff is to provide a translated version of Exhibit YWM2 from an independent translator by 4 pm on 11 January 2021, failing which any order for extension of time will be revoked and the action shall stand dismissed.

(2)  If the translation is provided, there shall be an extension of 3 weeks, ie up to 4 pm on 25 January 2021 for the provision of security.

(3)  For the avoidance of doubt, the order of Recorder Manzoni that the order will stand dismissed tomorrow shall be stayed pending performance of the 2 previous paragraphs.

 (Discussion re costs)

10.  Costs of this application summarily assessed at $5,200 be to the defendant.