LI MEI YUNG v. EASTERN PACIFIC CIRCUITS (HK) LTD

CACV9/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL No. 9 of 2007

(ON APPEAL FROM DCPI No. 1683 of 2005)

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DECISION

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Hon.  Yuen JA:

1.  This is an application by the Defendant for security for costs of an appeal.

2.  In the action, the Plaintiff sued the Defendant (who was her employer) for common law damages for personal injuries suffered when she took out some circuit boards from a lift at her place of  work. 

3.  Judge C.B. Chan gave judgment for the Plaintiff in respect of liability but quantified her damages at a total sum of $192,515.06 only.  As the Defendant had already paid the Plaintiff employees’ compensation in the sum of $229,786.01, the Plaintiff’s common law claim was dismissed and the judge further ordered that she pay the costs of the action to the Defendant.

4.  The Plaintiff has lodged an appeal, the judge having given leave on   2 January 2007.      

Application for security for costs of appeal

5.  This gave rise to the Defendant’s application for security for costs    of the appeal in the sum of $200,000 on the ground of the Plaintiff’s impecuniosity under Order 59 rule 10(5) of the Rules of the High Court. 

Principles

6.  The relevant principles governing applications for security for costs of an appeal have been summarized by the Court of Appeal in    Chung Kau v Hong Kong Housing Authority and others [2004] 2 HKLRD 650 and in determining this application, I would apply   those principles.

Plaintiff’s impecuniosity

7.  The first matter to be examined was whether the Defendant has shown that the Plaintiff is impecunious.  The Defendant relied upon the fact that the Plaintiff was given legal aid at the trial below.  Moreover, in the Plaintiff’s affirmation filed on 1 March 2007 in opposition to this summons, the Plaintiff has in para. 6  acknowledged that she was impecunious.  So it is clear that if the Plaintiff were to fail on appeal, it is unlikely that the Defendant would be able to recover its costs of the appeal.

Merits of the Plaintiff’s appeal

8.  The next stage is to consider the merits of the Plaintiff’s appeal.     The Plaintiff has already had her day in court.  The trial took 2 days.  The Plaintiff has had judgment given in her favour but for a smaller amount than what she sought.  She now wishes to appeal against    that finding.  The Defendant having demonstrated that it would be unlikely to recover the costs of the appeal from her, it is for the Plaintiff to demonstrate countervailing factors which would militate against an order for security being made. 

9.  Has the Plaintiff shown that she has such strong merits on appeal    that the court should exercise its discretion not to order security?  I have considered the grounds of appeal set out in the Notice of Appeal.  I consider that the Plaintiff’s case is not that strong that I should exercise my discretion against security for costs. 

10.  Although the judge gave leave to appeal, it is clear from the  judgment that there was evidence (both expert medical evidence and video evidence) on which the judge was entitled to come to the conclusion that the Plaintiff’s case on the extent of her injuries was exaggerated. 

11.  At this hearing, the Plaintiff alleged that the VCDs had been shown  to the court without any opportunity for her to explain the actions as shown in it.  However the Court file confirms what Mr Leung, the Defendant’s solicitor says, that the VCDs and surveillance reports had been disclosed in the process of discovery to the Plaintiff‘s solicitors on 15 August 2006, about a month before the trial.  

12.  The judge’s findings are findings of fact not law, and it is well- established that an appellate court would be very slow to interfere with findings of primary fact (see e.g. the Court of Final Appeal’s judgment in Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC  601).

Estimate of costs

13.  As for the estimate of costs, I consider that a sum of $120,000    would be a reasonable estimate of the costs involved.

Order

14.  I would therefore order that the Plaintiff do within 28 days pay $120,000 into Court as security for the costs of and occasioned by  her appeal, and that until such security is given, the appeal be    stayed, and that in default of the security being furnished within the 28 days, the appeal stand dismissed without further notice or order, with costs of the appeal to be taxed if not agreed and paid by the Plaintiff to the Defendant.

15.  The Defendant having previously sought security for costs in correspondence and the Plaintiff not having offered any sum, and having heard submissions on costs, I would order that the Plaintiff pay the costs of the summons for security for costs.