To continue civil action against his friend over a poker debt, former Ku De Ta boss Chris Au will have to pay HK$2 million (S$367,000) into a Hong Kong court as security.
Mr Au, a Singapore permanent resident, failed in his appeal to convince the court that his ordinary residence was in Hong Kong and not Singapore.
"The ordinary residence of the plaintiff was of fundamental importance as a plaintiff ordinarily resident in Hong Kong could not be ordered to provide security for costs, no matter how impecunious he was, and no matter how likely he was at risk of the defendant not being able to recover costs from him if he failed in his action," said Hong Kong Deputy High Court Judge Marlene Ng.
She added in decision grounds issued last week that, for the purpose of security for costs, a plaintiff who was resident in Hong Kong at the time when the alleged cause of action arose but who is no longer resident "should not be in any different position to that of a plaintiff who has always been non-resident".
Mr Au, who used to run the former Ku De Ta nightclub at Marina Bay Sands, is suing Mr Steve Yoon for HK$7.2 million allegedly over losses in 33 poker games that the duo took part in back in 2008 with two others. Mr Au claims that he has maintained a social relationship with Mr Yoon, a lawyer, ever since they met in "late 2004 or early 2005" to play poker.
Mr Yoon, in denying the claims, countered that the players never intended the card games played on social occasions to give rise to binding legal obligations for settlement of losses, among other things.
Mr Yoon, in addition to his counterclaim, also applied for Mr Au to pay a security deposit into court. He did this out of concern that if he were successful in his defence, Mr Au would be unable to pay his costs, given that Mr Au was ordinarily resident in Singapore and there were no assets that could be identified.
Hong Kong Registrar Lung Kim Wan granted an order in April for Mr Au to provide the HK$2 million security. Mr Au then appealed against the decision, arguing he had lived in Hong Kong for 13 years before moving to Singapore in 2010 and was a Hong Kong resident with a Hong Kong identity card and passport.
He added that he applied to be a Singapore PR solely for "business convenience", as otherwise he would have to renew his employment visa every two years. He said the Ku De Ta business project involved heavy foreign investment and employed over 300 staff. He thought the Singapore authorities would review his business plans more favourably if he, as founder of the firm, ran it as a Singapore PR.
Judge Ng found such assertions "lent weight" to the view that he lived and worked in Singapore for the settled purpose of launching and carrying on his food and entertainment businesses in the country.
She made it clear that while being a Singapore PR was not conclusive that he was "not ordinarily resident" in Hong Kong, it "added weight" to the continuity of his connections to Singapore, "especially when his personal and business connections to Hong Kong after 2010 were at best tenuous". She said: "It must also not be forgotten that his wife and child were in Singapore."
This article was first published on Nov 29, 2016.
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