LAW KIN MAN AND OTHERS v. CHEUK WAI MAN AND OTHERS

1991 M.P. No. 1711

IN THE SUPREME COURT OF HONG KONG

 H IGH COURT

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 IN THE MATTER OF THE DRUG TRAFFICKING
(RECOVERY OF PROCEEDS) (DESIGNATED COUNTRIES
AND TERRITORIES) ORDER 1991

and

IN THE MATTER OF

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1989 M.P. No. 3419

AND

IN THE MATTER OF THE DRUG TRAFFICKING
(RECOVERY OF PROCEEDS) ORDINANCE 1989

 and

IN THE MATTER OF

_______________________

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 DECISION

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1. This is an application following the handing-down of my judgment in this matter on 15th April this year. The application is by the Bank of Credit and Commerce (Hong Kong) Limited (In Liquidation). The application is that the costs should either be on an indemnity basis or a common-fund basis.

2. My attention has been drawn to what are now the leading authorities in this matter, including in particular that of Godfrey J. in Overseas Trust Bank Limited v. Coopers & Lybrand (a firm) and Peat, Marwick, Mitchell & Co. (a firm) [1991] HKLR 177, what had been said in Lau, Wong & Chan v. Famous Investment Company Limited [1991] HKLR 115, what had been said by Liu J.A. in Fenn Kar Bak Lily v. Goh Kim Lai [1995] 3 HKC 313, and lastly to an unreported decision of Kaplan J. in The Commissioner of Inland Revenue v. Aspiration Land Investment Limited, the decision of 14th December 1990.

3. It will, of course, be noted that since the earlier of these decisions, there has been an amendment to the rules in 1991. That does not really affect the outcome of this application. Dealing first with the facts of my decision, Mr. Barlow, on behalf of the Attorney-General, has reminded me that the application by the Attorney-General was on the basis stated in the skeleton that the Attorney-General seeks relief in clarification of or to supplement previous orders of the Court in these proceedings. In a nutshell, I came to the conclusion both by a long route and by a short route that really the matters which were raised on the application had been decided or no longer fell to be decided because of previous decisions in these two proceedings and I do not propose to go into that any further.

4. In those circumstances and in that light when one sees the Attorney-General's approach, one sees that he was coming back for clarification or to supplement previous orders some of which have been made not strictly, as I have said, by consent but, at least not having been opposed, and some after the matter had been argued out.

5. It seems to me that, in those circumstances, it is right that the opposing party, who has been dragged into Court, as I have held, unnecessarily, should at least get his costs on the basis that all the costs which are reasonable in amount and have been reasonably incurred should be given to him. The matters which were raised are matters which, in my view, it was not necessary to raise. I, therefore, consider that the costs on this application should be on a common-fund basis, as I consider that are fair.

6. Turning to costs on an indemnity basis, I have considered in particular what has been said by Godfrey J. in the case involving the accountants and I only wish to add a note that, in my view, usually indemnity costs are awarded where one party to the litigation is in a situation where the Court considers it right to penalize it either from the point of view of having been in contempt of Court or from the point of view of having acted very improperly. There was one instance where I ordered costs on an indemnity basis because what one of the parties had done had been an affront to the Court.

7. In saying this I have taken into account Kaplan J.'s decision in

8. In those circumstances, as I have indicated, I am disposed to make the costs on a common-fund basis but not on an indemnity basis.