YIU HON LAM v. CHAN YU CHUN

CACV 383/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2007

(ON APPEAL FROM DCCJ NO. 5351 OF 2005)

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DECISION

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1.  The plaintiff sued the defendant in defamation.  The plaintiff’s claim was dismissed because although the words complained of were defamatory, they were published on occasions of qualified privilege.

2.  However, HH Judge Leung ordered that the defendant paid half of the plaintiff’s costs of the action because the learned judge deplored the defendant’s conduct.  He said in para. 125 of the judgment:

“125. The Plaintiff’s claim fails.  Should costs follow the event?  I have no doubt that they should not, in the circumstances of this case.  Considering how the Defendant came to publish her defamatory statements as well as the various untenable positions which she maintained until after the commencement of the trial, I am of the view that discretion should be exercised in favour of a costs order which would reflect my disapproval of such deplorable conduct.”

3.  Subsequently, after hearing submissions on the order nisi which he made on 20 August 2007, in the learned judge’s decision of 21 September 2007, he went on to explain the basis upon which he made the order nisi.  The order was made absolute as a result.

4.  The order nevertheless was an exceptional order because the learned judge did not simply deprive the successful party of some or all of its costs.  He ordered the successful party to pay the costs of the unsuccessful party albeit only half of it.

5.  On 26 November 2007, I gave leave to the defendant to appeal.

6.  This is the plaintiff’s application for security for costs of the appeal in the sum of $209,000.

7.  I am satisfied on the evidence that the plaintiff has shown that the defendant is impecunious and that special circumstances exist which might justify an order for security for costs.  However, I am also satisfied that if security were ordered, it would stifle the appeal.  I am satisfied that the defendant is not only personally impecunious, there are no reasonable prospects of her being able to raise the money elsewhere.

8.  The defendant is represented today by solicitors and counsel, and I have been told, on a pro bono basis.

9.  I am also satisfied on the material put before me that she has real and substantial prospect of success.

10.  In such circumstances, I would exercise my discretion against ordering security.  I would dismiss the plaintiff’s summons of 10 April 2008.

11.  As Mr Wong does not seek costs, I order that there be no order as to costs.