CHEN K F KENETH v. CHOW WAI LAP, WILLIAM

cacv 372/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 372 of 2007

(on appeal from HCA NO. 1061 of 2006)

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D E C I S I O N

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1.  This is an application for security for costs on the appeal.  There is no dispute that the defendant is impecunious and so the question arises, since he is a personal defendant as opposed to a corporate defendant, as to whether he has established a sufficient merit on the appeal that security should not be given because it would stifle his appeal. 

2.  Having considered the points made in the documents and today by Mr Juan, I regret that I do not consider that there is sufficient grounds in the appeal for security not to be ordered and, indeed, even if I were wrong about that, it would seem to me that this would be a case where there would probably have to be payment into court.  So, in those circumstances, I consider that security should be ordered.  I propose to order it in the sum of $200,000.00.  In view of the upcoming New Year, I propose that that should be paid on or before 18 February which is six weeks from today. 

3.  The order that I propose to make is that the defendant do, on or before 18 February, give security to answer costs in case any shall be awarded to be paid by the defendant to the plaintiff by making lodgement in court of the sum of $200,000.00 by cash or banker’s draft or by the provision of a bank guarantee of the like amount which guarantee shall have been approved by the Registrar; and until such lodgement be made and notice thereof given to the Registrar and to the solicitors for the plaintiff, such notice to be given on the same day as lodgement is made, or proceedings in the said appeal are to be stayed. 

4.  In default of the defendant making such lodgement as aforesaid within the time specified above or within such further time as the court may for special reasons allow, the said appeal do, upon the solicitors for the plaintiff certifying such default to the Registrar, stand dismissed out of this court without further order.  In the event that the appeal is dismissed in the circumstances provided for above the defendant do pay to the plaintiff his costs occasioned by the said appeal, such costs to be taxed and the costs of this application be costs in the appeal.