JORA SISI OMAR v. JORA HARMIDAR OMAR

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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REVIEW OF TAXATION

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Background

1.  This is a review application made by the plaintiff in respect of my taxation of the defendant’s bill of costs dated 22 May 2013 (“the Bill”).

2.  By the order of Poon J dated 25 March 2013, the plaintiff was ordered to pay forthwith the defendant’s costs of the plaintiff’s summons filed on 28 September 2012, the plaintiff’s summons filed on 30 October 2012 and the defendant’s summons filed on 5 October 2012, including all costs reserved, to be taxed if not agreed.

3.  The Bill was prepared by the defendant pursuant to the said order of Poon J and was taxed by me on 26 May 2014.

4.  The plaintiff is dissatisfied with my taxation and filed an application by way of summons dated 6 June 2014 to review my taxation made on 26 May 2014 pursuant to Order 62, rule 33 of the Rules of the High Court.

5.  A list of objections was delivered by the plaintiff on 10 July 2014 specifying the items of the Bill to which she has objections on review and the grounds of such objections.  The defendant delivered the answer to the plaintiff’s list of objections on 4 August 2014.

6.  At the review hearing on 29 September 2014, the plaintiff submitted many matters not related to the grounds of objections stated in the list of objections.  As indicated to the plaintiff at the hearing, I will not deal with those matters not related to the stated grounds of objections.  In any event, many of those matters submitted by the plaintiff at the hearing were not relevant to taxation but were in relation to her dissatisfaction with Poon J’s decision.  Thus, for the purpose of this review, I will only deal with the plaintiff’s objections as per her list of objections.

7.  In her list of objections, the plaintiff also seeks clarification of the calculation of the taxing fee of $9,756.00.  As the calculation of taxing fee was done after taxation and did not form part of my decision on taxation, it should not be a subject matter for the present review application.  It is also inappropriate for me to give legal advice to the plaintiff on how the taxing fee should be calculated.  Thus, I will not deal with this request for clarification. 

8.  According to the list of objections, the plaintiff objects to the taxation of items 1, 2, 4.1, 13, 14.1, 14.2, 19, 23, 24, 30.1, 30.2 and 30.3 of Section A, items 3 of Section B.1, items 1 to 3 of Section B2 and item 3 of Section C of the Bill.  I shall deal with these objections as stated below.

Items 1 and 2 of Section A

9.  The plaintiff objects to items 1 and 2 of Section A of the Bill as follows: -

“- the summons & the affirmation were sent to the Defendant’s agent KH as 1 whole set of document

- the contents of the summons were 2 pages in 1.5 line spacing

- the contents of the affirmation were 6 pages also in 1.5 line spacing

- the contents of the 3 exhibits attached to the affirmation were things already very well known to the KH for almost 9 months

-it does not take an hour to consider a few pages & something already known, KH has been practicing for 18+ years, 20 minutes is more than enough”

10.  Item 1 of Section A is for the work done by the defendant’s solicitor, Ms Kelly Ho (“KH”), in considering the plaintiff’s summons dated 28 September 2012.  The summons has 4 pages (not 2 pages as suggested by the plaintiff) and 10 paragraphs in total.  The spacing of 1.5 lines is just the standard format for court documents.  The summons covers applications under Order 14A and Order 14 of the Rules of the High Court and many grounds for the applications were stated in the summons.  The defendant claimed for 15 minutes for this work and I allowed 15 minutes as claimed.  I do not think that 15 minutes is excessive or unreasonable for a solicitor to spend in considering a summons of this length and nature.

11.  Item 2 of Section A is for the work done by KH in considering the plaintiff’s supporting affirmation for the said summons.  The affirmation has 7 pages (not 6 pages as suggested by the plaintiff) and 28 paragraphs together with 3 exhibits.  Again, the spacing of 1.5 lines is just the standard format.  Even though KH might be familiar with the background of the case and was admitted as a solicitor in 1994, it is still necessary and proper for her to consider the affirmation in details so as to see if the contents support the plaintiff’s applications.  The time claimed by her is 1 hour and I allowed 45 minutes.  I do not consider 45 minutes being excessive or unreasonable for such work.  The suggestion of 20 minutes by the plaintiff is just far too low for an affirmation of this length and nature.

12.  It is not clear why the plaintiff mentioned that the summons and the affirmation were sent to KH as one whole set of documents, which is in fact what should be done normally.  In any event, the time for considering the summons and the affirmation can be separately charged and I see no problem with that.

13.  Thus, I do not agree that the taxed amounts for items 1 and 2 of Section A of the Bill should be revised at all.

Item 4.1 of Section A

14.  The plaintiff objects to item 4.1 of Section A of the Bill as follows: -

“- this false affirmation & the 12 irrelevant exhibits only serve a dirty purpose, i.e. created confusion & to drag on for KH own commercial benefits in this non arguable in law & fact probate action

- the core of this affirmation is paragraph 6 a made out dirty lie stating that “the Plaintiff orally agreed to strike out her own pleading”

- the real fact was: the Plaintiff issued summons on 3^rd April 2012, she invited Master K. Levy (the one who gave direction to start this action) to help her & end this non arguable in law & fact probate action on Court own motion in the hearing dated 26^th April 2012 because nothing has been defended & the impossible is being pointlessly claimed

- considering statement of claim, defence to counterclaim & so-called exhibits that stated relevant laws & hard facts is irrelevant & absolutely has nothing to do with KH’s dirty lie that served her dirty purpose

- KH has been practicing for 18+ years, draft many dirty lies to divert Court’s attention & glossed it with irrelevant materials which also included her 3 PERSONAL ORDERS does not need to take 4 hours, 30 minutes or less is more than enough”

15.  This item is for drafting the affirmation of KH dated 4 October 2012 in support of the defendant’s summons filed on 5 October 2012 for striking out many parts of the plaintiff’s pleadings.  The affirmation has 6 pages and 19 paragraphs, as well as 12 exhibits.  The time claimed by KH for this item is 8 hours and I taxed it down to 4 hours.  I consider 4 hours being reasonable time for preparing an affirmation of this length and nature.  The plaintiff’s suggestion of 30 minutes or less is obviously insufficient for doing such work.

16.  The plaintiff’s main objections are that the affirmation is false and contains irrelevant exhibits, but such objections cannot be established in view of Poon J’s decision in allowing the defendant’s summons and many parts of the plaintiff’s pleadings were struck out as sought by the defendant.

17.  I therefore do not agree that the amount taxed by me for this item should be revised.

Item 13 of Section A

18.  The plaintiff objects to item 13 of Section A of the Bill as follows: -

“- the contents of the Plaintiff’s Defence were 8 pages in 1.5 line spacing: the contents merely stated the laws & facts already known to KH

- KH has been practicing for 18+ years, it does not take her 45 minutes to read a few pages, this does not make sense, 15 minutes or less is enough”

19.  This item is for KH’s work in considering the plaintiff’s “DEFENCE to Defendant’s application for O18, R19”, which is in effect the plaintiff’s written submission in respect of the defendant’s striking out application as mentioned above.  It has 9 pages (not 8 pages as suggested by the plaintiff) and 22 paragraphs.  KH claimed 1 hour for this work and I taxed it down to 45 minutes.

20.  Although some of the laws and facts stated in this document would be known to KH, it is still proper and necessary for KH to consider the submissions put forward by the plaintiff in this document.  I think it is appropriate to spend 45 minutes for considering submissions of this length and nature.  The plaintiff’s suggestion of 15 minutes or less is clearly insufficient for this work.

21.  Hence, there is no reason to revise the amount for this item.

Item 14.1 of Section A

22.  The plaintiff objects to item 14.1 of Section A of the Bill as follows: -

“- this affirmation & the 15 so-called exhibits are irrelevant to the validity of the 1960 joint adoption

- the 1960 joint adoption has to be valid according to S4(3) & 3(2) Adoption Ordinance, No. 22 of 1956, i.e. valid according to the relevant laws not the standard procedures prove by the 15 exhibits

- this affirmation has evaded the relevant laws, diverted Court attention to the irrelevant and it only serve a dirty purpose, i.e. created confusion & to drag on for KH own commercial benefits in this non arguable in law & fact probate action

- KH has been practicing for 18+ years, it does not take 2 hours to draft a few pages to evade laws and divert Court attention knowingly & intentionally, 30 minutes or less is enough”

23.  This item is for drafting the defendant’s affirmation dated 8 November 2012 in opposing the plaintiff’s application for disposal of case on point of law under Order 14A and summary judgment under Order 14 of the Rules of the High Court. The affirmation has 10 pages and 37 paragraphs.  It has 15 exhibits, but the time for considering the 15 exhibits was separately charged under item 14.2 of Section A as discussed below.  KH claimed 3 hours for drafting the affirmation (not including the consideration of the exhibits), but I taxed it down to 2 hours.  I think 2 hours for drafting this affirmation is appropriate in view of its length and nature.  The plaintiff’s suggestion of 30 minutes or less is certainly not enough.

24.  The plaintiff’s suggestion that this affirmation and the 15 exhibits were irrelevant is unfounded as the defendant did succeed in opposing the plaintiff’s application under Order 14A and Order 14.

25.  There is no reason to revise the taxed amount for this item.

Item 14.2 of Section A

26.  The plaintiff objects to item 14.2 of Section A of the Bill as follows: -

“- KH must know the 15 exhibits only prove standard procedures & they are irrelevant to the validity of the 1960 joint adoption

- it does not take 30 minutes to reconsider the irrelevant & the obvious to serve a bad purpose, in fact 5 minutes is more than enough”

27.  As aforesaid, this item is for considering the 15 exhibits attached to the defendant’s affirmation dated 8 November 2012.  KH claimed 1 hour 30 minutes for this item, but I taxed it down to 1 hour.  I think 1 hour for considering 15 exhibits is reasonable and the plaintiff’s suggestion of 5 minutes is just unrealistic.

28.  There is also no basis for the plaintiff to suggest that the 15 exhibits were only to prove standard procedures and irrelevant to the issue in question in view of the dismissal of the plaintiff’s applications.

29.  I therefore do not agree that the taxed amount for this item should be revised.

Item 19 of Section A

30.  The plaintiff objects to item 19 of Section A of the Bill as follows: -

“- the Opposition was the made out affirmation & the 15 irrelevant exhibits listed as items 14, 14.1 to 14.3 on page 3 of this bill

- the Plaintiff was bound to state the laws & facts in her Reply dated 12/12/12 & these were nothing new to KH

- it does not take 3 hours or 1 & 1/2 hours for KH to read the affirmation of 22 pages in 1.5 line spacing, 20 minutes or less is enough”

31.  This item is for considering the plaintiff’s affirmation in reply to the defendant’s opposition to the Order 14A and Order 14 applications.  The affirmation has 23 pages (not 22 pages as suggested by the plaintiff) and 71 paragraphs together with 8 exhibits.  The time claimed by KH was 3 hours and I taxed it down to one and a half hours, which I think is reasonable in view of its length and nature.  Even though some of the laws and facts might be known to KH, it is still proper and necessary for KH to go through the affirmation in details. The plaintiff’s suggestion of 20 minutes is clearly insufficient.

32.  Thus, the amount taxed should not be revised.

Item 23 of Section A

33.  The plaintiff objects to item 23 of Section A of the Bill as follows: -

“- the Defendant’s skeleton argument had evaded the relevant laws & distorted hard facts; the list of 7-point made out false arguable issues only served to create confusion that misled the Court

- the Defendant’s chronology was selectively made out to mislead the Court

- the Defendant’s 2^nd list of authorities was released to the Plaintiff on 12^th March 2013 morning, i.e. a few minutes before the hearing

- it does not take 1 hour to consider what are made out to mislead the Court as well as to trick & trap the Plaintiff: the worst job was knowingly & intentionally done, the one hour was hardly necessary, 10 minutes or less is enough”

34.  This item is for considering the defendant’s skeleton argument, chronology of material events and list of authorities prepared by the defendant’s own counsel.  The skeleton argument has 21 pages and 70 paragraphs.  The chronology of material events has 2 pages and there are 14 paragraphs in the Hong Kong Civil Procedure referred to by counsel in the list of authorities.  The time claimed by KH was 2 hours and I taxed it down to 1 hour.  I think it is necessary and proper for KH to go through these documents even though they were prepared by the defendant’s own counsel.  As the skeleton argument is rather lengthy and contains many legal arguments, I think 1 hour for considering all these documents is not excessive or unreasonable.  The plaintiff’s suggestion of 10 minutes or less is just unrealistic.

35.  There is also no basis for the plaintiff to allege that the defendant’s arguments and chronology had evaded the relevant laws and hard facts or that they were false arguable issues only served to create confusion that misled the Court when Poon J has found in favour of the defendant.

36.  Thus, there is no reason to revise the taxed amount for this item.

Item 24 of Section A

37.  The plaintiff objects to item 24 of Section A of the Bill as follows: -

“- Plaintiff’s skeleton argument was a very clear cut 3 & 1/2 pages 1.5 line spacing document

- Plaintiff had only listed 6 relevant authorities

- Plaintiff’s chronology merely restated facts already very well known to KH

- KH has been practicing for 18+ years, in reading the aforesaid, 20 minutes or less is enough”

38.  This item is for considering the plaintiff’s skeleton argument, list of authorities and chronology of events.  The skeleton argument has 4 pages (or 3 & ½ pages as suggested by the plaintiff).  The list of authorities contains 6 authorities.  The chronology of events has 5 pages.  KH claimed for 1 hour and I taxed it down to 45 minutes.  It is proper and necessary for KH to go through these documents in details especially the cases cited by the plaintiff and a period of 45 minutes for considering these documents is not excessive or unreasonable.  The plaintiff’s suggestion of 20 minutes or less is just too low.

39.  I see no reason to revise the taxed amount for this item.

Item 30.1 of Section A

40.  The plaintiff objects to item 30.1 of Section A of the Bill as follows: -

“- the Defendant is a Muslim by conversion, she must know the 1944 Islamic marriage could not be valid under the law of HK, as a direct result the 1960 joint adoption must also be invalid. She is clear that her claim has been officially rejected. The worst job was planned & already implemented. Discussing & reporting the dirty job only take a very short time. 10 minutes or less is enough”

41.  This item is for the communication between KH and the defendant.  The time involved was 47 minutes and I allowed it in full.  This is the actual time KH spent with her client and I see no reason for the plaintiff to suggest that the time should be shortened to 10 minutes or less just because the defendant is a Muslim by conversion and must know that the 1944 Islamic marriage or the 1960 adoption could not be valid under the laws of Hong Kong.  In any event, it is proper and necessary for KH to advise the defendant and not to assume that the defendant knew the laws.

42.  Thus, the taxed amount should not be revised.

Item 30.2 of Section A

43.  The plaintiff objects to item 30.2 of Section A of the Bill as follows: -

“when was the communication done & how ? Clarification is needed.”

44.  This item is for the communication between KH and the plaintiff.  It concerns the correspondence passing between the defendant’s solicitors and the plaintiff, namely 7 letters dated 5 October 2012, 7 November 2012, 12 November 2012, 18 January 2013, 28 February 2013, 4 March 2013 and 7 March 2013 respectively from the defendant’s solicitors, and 7 letters dated 16 September 2012, 28 September 2012, 18 October 2012, 1 November 2012, 7 November 2012, 13 December 2012 and 8 March 2013 respectively from the plaintiff.  These letters are mainly for service of documents.  KH claimed for 1 hour and 7 minutes and I taxed it down to 45 minutes.

45.  As the plaintiff is merely asking for clarification, I do not see any reason to revise this amount any further.

Item 30.3 of Section A

46.  The plaintiff objects to item 30.3 of Section A of the Bill as follows: -

“- preparation was done & the worst job was about to be implemented, a one hour 14 minutes or a 45 minutes communication was still too excess: 15 minutes is enough”

47.  This item is for the communication between KH and the defendant’s counsel, Mr K M Chong, which is mainly for sending documents to counsel.  KH claimed 1 hour and 14 minutes and I taxed it down to 45 minutes.  There is no reason to suggest that this amount is too excessive or should be reduced to 15 minutes or less.

48.  Thus, no revision is made for this item.

Item 3 of Section B.1

49.  The plaintiff objects to item 3 of Section B.1 of the Bill as follows: -

“- K.M. Chong is not a senior counsel, the hearing on 12^th March 2013 was less than 2 hours: he had only cheated & lied, it was not legal professional work, what he had done does not justify a bill of 80K or 70K

- C.K. Mok & Co. did preparatory work not him & the unnecessary costs of this non arguable case are already listed in this bill via different labels

- the Defendant’s case is defected by legislations: this K.M. Chong had knowingly & intentionally evaded the laws by submitting that: “license place was not necessary for marriage” & “S21 Cap. 33 is not valid because a sentence been deleted in the by law.” By the standard of any reasonable man, this is cheating & lying not professional service

- the Defendant’s claim was already rejected by the Liquidator & the HK government in 1998 but in 10^th May 2002 she still gave the Liquidator the false impression that she still want to claim the Plaintiff’s 53-year old home that is being occupied by a few generations, she had done nothing for over a decade, such situation had been affecting ten families & related parties: K.M. Chong knowingly & intentionally distorted facts by submitting that the Liquidator had been stood up until the writ of this probate action was served. By the standard of any reasonable man, this is cheating & lying not professional service

- no Hong Kong Ordinance & no practice direction has given special entitlement to any Counsel to evade laws & distort facts in order to mislead the Court, then turn round & send a made out costly bill to the victim who had suffered grave injustice

- 1/2 of 70K is still a very high amount for such unbelievable work if law & order still exist in HK”

50.  This item is for Mr K M Chong’s brief fee.  The actual brief fee was $80,000.00 and I taxed it down to $70,000.00.  Although Mr Chong is not a senior counsel, he is a senior junior.  I think this case may not need a counsel of  Mr Chong’s seniority to attend, but even for a less senior junior to attend, $70,000.00 for the brief fee is by no means excessive or unreasonable.  There were 3 summonses involved, and the brief fee covers the preparation work, not just the attendance at the hearing on 12 March 2013.  Although the defendant’s solicitors, Messrs C K Mok & Co also did some preparatory work, it does not mean that Mr Chong did not do any preparation work.  Indeed, Mr Chong together with another junior counsel, Ms Yvonne Yip, had prepared a skeleton argument of 21 pages and 70 paragraphs for the hearing and he did not charge separately for the preparation work.  The defendant did not charge the plaintiff for Ms Yip’s brief fee either, as no certificate for two counsel was allowed.  Thus, assuming a less senior counsel was doing the work, I think it is justifiable for that counsel to charge $70,000.00 for the brief fee including all the preparation work.

51.  There is no basis for the plaintiff to accuse Mr Chong cheated and lied or that Mr Chong knowingly and intentionally evaded the laws.  In any event, such allegations could not be used to reduce counsel’s fee. 

52.  I therefore see no reason to revise the taxed amount for this item.

Items 1 to 3 of Section B.2

53.  The plaintiff objects to items 1 to 3 of Section B.2 of the Bill as follows: -

“- bill items 14 & 14.1 to 14.3 on page 3 only help to drag on & waste my time but prove nothing

- bill items B2, 1 to 3 is an unnecessary extension of bill items 14 & 14.1 to 14.3 on page 3: all these items refer to the same irrelevant thing

- it is stated again: the Defendant’s affirmation & the 15 so-called exhibits are totally irrelevant to the validity of the 1960 joint adoption

- it is stated again: procedures does not help to prove the validity of the 1960 joint adoption

- these items are as unbelievable as K.M. Chong’s costly bill

- 1/2 of 5K is still high for this unbelievable work

54.  These 3 items are for disbursements paid to a Notary Public in Canada for notarization of the Defendant’s affirmation dated 8 November 2012, the Chinese Consulate General in Canada and Fedex Express respectively.   They were all incurred for the preparation of the said affirmation but different from KH’s charge for her professional work.  So they were not unnecessary extension of items 14.1 to 14.3 of Section A of the Bill as contended by the plaintiff.  As discussed above, I do not find that this affirmation is irrelevant to the proceedings, and hence the defendant is entitled to the costs for preparing this affirmation including the disbursements under these 3 items.

55.  It is therefore not necessary to revise the amounts under these 3 items.

Item 3 of Section C

56.  The plaintiff objects to item 3 of Section C of the Bill as follows: -

“- 5 minutes is more than enough”

57.  This item is for KH to approve the Bill.  KH claimed 1 hour for this work and I taxed it down to 30 minutes.  The Bill has 11 pages.  It is unrealistic for the plaintiff to suggest that KH needed only 5 minutes to approve it.  I think 30 minutes for approving the Bill is reasonable.  Thus, there is no need to revise the taxed amount.

Conclusion

58.  In the circumstances, I do not find that there is any valid ground for reviewing my taxation and hence the review application must be dismissed.

59.  I therefore order as follows:-

(1) The summons dated  6 June 2014 be dismissed; and

(2) Costs order nisi: The plaintiff do pay the defendant costs of the said summons forthwith to be taxed if not agreed.