WU YEE PAK AND ANOTHER v. UN FONG LEUNG AND OTHERS

CACV 172/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2002

(ON APPEAL FROM HCMP NO. 3773 OF 1998)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal. In this case there is no dispute that the plaintiff is entitled to leave to appeal under section 22(1)(a) of the Court of Final Appeal Ordinance.

2. The dispute arises out of the application for security for costs as part of the conditions which are imposed in giving leave. The grant of security for costs is very normal in applications for leave to appeal to the Court of Final Appeal. The ordinance gives power to order up to $400,000 as security.

3. In this case, the objection is taken on behalf of the plaintiff on the basis of impecuniosity and the fact that the plaintiff wishes to raise a new ground on the appeal, and has filed evidence in that regard. As regards the impecuniosity, that is a matter which seems to be fairly clear; the plaintiff was legally represented, but is now no longer able to afford that and nothing has been said to us to dispute the fact that the plaintiff is impecunious.

4. It has to be noted that the plaintiff himself is now incapacitated, as mentioned in the judgment. He has suffered a stroke since this action commenced and is now no longer in a position to look after himself. He certainly cannot conduct these proceedings on his own. If one looks at it on both sides, one also has to take into account the fact that because the plaintiff is impecunious, the 3rd defendants are unlikely to recover any costs either for the proceedings below or in this court or in the Court of Final Appeal, if the 3rd defendants are successful there.

5. We have been shown the bill of costs for the trial and apparently there is a sum of just over $400,000 which has been taxed, but not paid. We have been shown the draft bill of costs for the appeal to this court; they have not been taxed yet and they come to a modest amount.

6. Turning to the merits of the appeal, the ground which is being put forward, at the moment, is that the judge wrongly took exception to part of the plaintiff's evidence and held it against him that he was unaware that part of the land had been resumed in 1994. This court has been slightly hampered by the difficulty that some of the plans, which were a part of the report which is exhibited to new evidence that is sought to be used, have been retained by former solicitors so this court has not had the benefit of seeing those plans.

7. Having done the best one could with the plans that were available, it seems to me that it is not at all clear that the judge was wrong in his assessment that the plaintiff must have been aware of a resumption of land. The portion of the land which was subject to a resumption notice in 1994 and resumed in 1995, was only a very small part of the land which the plaintiff claimed.

8. It is quite understandable that the evidence as given by the plaintiff after he had suffered a stroke led the judge to believe that the plaintiff was denying all knowledge of it; clearly it seems from the papers that the plaintiff did receive some payment in compensation for trees which had been felled on that part of the land which was resumed in 1995 and which the plaintiff looked after.

9. Be that as it may, it seems to me however that probably the crucial point in the judge's decision, and it was the judge's acceptance of the 3rd defendant's evidence, was that rent had been paid in kind. Whether it was right to treat what the judge felt was payment in kind as indeed payment of rent is not a point which has been raised today and it is a point which the judge decided and this court has accepted. So, whether it would now be open to the plaintiff to take that point in the Court of Final Appeal is of course, very tenuous in view of the concurrent findings of fact.

10. In view of the fact that the plaintiff has a right of appeal to the Court of Final Appeal, it seems to this court that we should make some order which balances the justice to the 3rd defendants on the view that they are unlikely to recover any costs if they are successful and the justice to the plaintiff to air the grievances which the plaintiff, no doubt, feels as a result of the judgment against him.

11. In our view, doing the best we can, we consider that a sum in the region of $50,000 would be appropriate. We have taken into consideration the costs which were incurred in this court and counsel's fees. We think that if the matter goes to the Court of Final Appeal, that will at least provide the 3rd defendant with some security, albeit not very much.

12. In our view, however, it would be highly desirable that the plaintiff is legally represented and if legal aid can be provided, that seems to be highly appropriate. It would be most undesirable that a case of this nature should go to the Court of Final Appeal with the parties, or one party, representing themselves, because we do not consider that that is either in the public interest or in the interests of the efficient disposal of cases in the Court of Final Appeal.

13. Be that as it may, it is not in our power to grant legal aid to the plaintiff but we mention that in case the matter goes to other quarters. So, we will order security for costs in the sum of $50,000.