馬桂珍 v. 姚黎李律師行

CACV 243/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 243 OF 2004

(ON APPEAL FROM HCA 4760 OF 2002)

______________

______________

______________

D E C I S I O N

______________

Hon Tang JA (giving the Decision of the Court):

1. On 27 October 2004, Cheung JA ordered the plaintiff to provide security for costs in the sum of $80,000 in respect of her appeal from the judgment of Chung J given on 26 July 2004.

2. The plaintiff has applied to this court to set aside Cheung JA’s order. 

3. In her submissions, the plaintiff advanced several reasons in support of her application:

(1)	That the defendant’s summons of 2 June 2004 had not been served properly.  This was dealt with by Chung J in paragraphs 4 and 5 of his judgment.
	This complaint has no substance.  Anyway, because of the late service of the summons of 2 June 2004, the hearing on 3 June 2004 was adjourned to 6 July 2004.
(2)	It is said that in the formal orders drawn up following the judgment of 26 July 2004, the defendant had caused unauthorized alterations to be made to the judgment of Chung J.
	There is nothing in this point.  One of the complaints was that in the drawn up orders, it was recited that Chung J had read certain affirmations although no reference had been made by Chung J to those affirmations in his judgment.  The plaintiff was not aware that judges would read the affirmations filed in support of the application whether or not they find it necessary to refer to them in their decisions, and that when the formal order was drawn up, references would be made to them.
(3)	That paragraph 24 of Chung J’s judgment was not recorded in any of the formal orders.
	But a reading of paragraph 24 shows that the judge said that it was unnecessary for him to make any direction in respect of the plaintiff’s intention to call certain witnesses.
(4)	The plaintiff said that her poverty was the result of the defendant’s conduct.
	She relied on her complaint of an alleged unlawful breaking in of the premises, Workshop D1 on the 2nd Floor, Lucky Horse Industrial Building (formerly known as Shiu Ying Industrial Building), No.64, Tong Mi Road, Kowloon, Hong Kong.  But as Chung J has pointed out in his judgment that was the subject of the judgment against the plaintiff in HCA 4095/2004.  Therefore there is nothing in this complaint either.

4. Lastly, we are in total agreement with the reasons given by Cheung JA.

5. For the above reasons, the application made on 15 January 2004 is dismissed.

6. We make an order nisi that the plaintiff is to bear the costs of this application to be taxed if not agreed.  The order for costs will be made absolute without further order unless the plaintiff makes a written submission to the contrary within 14 days of the delivery of this decision.