ALLIDEM MAE G v. KWONG SI LIN

HCMP 756/2005

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS NO. 756 OF 2005

(on AN INTENDED appeal from HCLA NO. 4 OF 2004)

______________________

______________________

______________________

D E C I S I O N

______________________

1.  This is an application for leave to appeal to the Court of Appeal from a decision of Carlson DJ given on 6 April of this year.  The judge had before him an application by the Defendant that security for costs should be ordered to be provided by the Claimant in this case on the appeal which the Respondent to the Claimant’s application is bringing to the High Court. 

2.  The basis of that application is that it was said that the Claimant had been dishonest in hiding her real address and not providing it as required.  The facts of the case are this: that on 12 January 2004, the Labour Tribunal gave a decision in the case.  It was the second hearing because the matter had been remitted to the Labour Tribunal for a rehearing.  The Labour Tribunal gave judgment for the Claimant in the sum of $28,290.40. 

3.  On 5 March 2004, there was an ex-parte application by the Defendant to the judge for leave to appeal to the High Court.  On 10 March, the clerk to the High Court Judge wrote saying that

“As regards the prosecution of the appeal, Order 55, rule 4 requires service of the Notice of Motion on the other party.  If the other party leaves Hong Kong in the meantime, application could be made to the court for leave to serve outside the jurisdiction.” 

4.  Sometime in March or April of 2004, the Claimant left Hong Kong and has apparently gone to Canada where she is now living and working.  After a further hearing on 28 May the judge handed down his Decision on 10 June 2004 giving leave to appeal.  On 11 June 2004, the Notice of Motion for the Appeal was served on an organisation which will be referred to as HDH, which was an organisation which had helped the Claimant and which was made the address for service for the Labour Tribunal proceedings.  The documents were returned because HDH said that the Claimant was not to be found there. 

5.  Eventually, on 27 July, the Master made an order that service of the notice on HDH would be effective because HDH had been given the Claimant’s address in Canada.

6.  Having considered all that, Carlson DJ came to the conclusion that he did not consider that there had been any substantial dissemblance on the part of the Claimant or any deliberate intention to avoid giving an address for service and I consider he was right. 

7.  In any event, the purpose of the allegations in respect of the Claimant’s address was that security for costs should be ordered.  Quite apart from the fact that legal aid has been granted to the Claimant on 28 December 2004, it seems to me that any application for security for costs against a successful party in the court below - the security for costs being sought on an appeal which is sought to be raised - seems to me to be doomed to failure. 

8.  A point was raised that after Carlson DJ had handed down his judgment on 6 April, there was then a discussion as to the future course and the judge indicated that although he knew the decision he would come to on a point of law, it was inappropriate for him to decide that point of law before he decided the whole case: it was all going to be treated as part and parcel of the whole thing.  That was a case-management decision and, in my view, he was correct in the way he approached it.  It would have been wrong for the judge to give a piecemeal decision and, in fact, I do not quite see how he could have done so, procedurally, and, in my view, he was correct to have taken that course.  On that ground, any application in that respect must also be refused. 

9.  In my view, it would be quite wrong for me to grant leave to appeal in this case.