CHEUNG KAM MUN v. CHEUNG KAM WAI AND OTHERS

HCA1986/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1986 OF 2007

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J U D G M E N T

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1. This is the trial of Action that had come on at a very short notice when I previously made an order at the hearing of the interlocutory injunction for a speedy trial.  At the commencement of the trial on Friday last week, the parties have indicated to the court, with the encouragement of the court, that there is some prospect of the matter being resolved amicably.  With the assistance of all parties, particularly the barristers and the solicitors, and with the changed attitude of the lay clients I am happy to be informed this morning that settlement has been agreed except as to costs.

2. Before I can go into the question of costs, perhaps I should first say a little bit about the nature of the case and what has led to the action being brought.  The plaintiff is the youngest son of the deceased mother who died in the year 2000.  The 1^st defendant is the elder brother, the 3^rd defendant is also an older brother, the 2^nd defendant being an older sister and the 4^th defendant being the husband of the 2^nd defendant.  What has led to this claim was the dispute after the death of the mother who had left a Will leaving to the respective 1^st, 2^nd and 3^rd defendants as well as the plaintiff each one-sixth of the share of the estate.  The unfortunate dispute arose possibly because of two reasons : one is a dispute over the accounting in relation to the estate, and the other is a dispute in relation to access to and what should take place at the mother’s altar at the family residence. 

3. The three defendants, that is, the two brothers and sister, must be considered to be particularly filial in this day and age.  They found it necessary to go regularly to pay their respect to their deceased mother at the family home.  This is particularly the case with the 2^nd defendant.  The mother’s altar is at the family home which she occupied with the plaintiff son before her death, and the plaintiff lives there with his wife.  This is the source of conflict, because they live there, the defendants needed to make regular visits there and therefore there were consistent disputes that arose at such visits. 

4. The dispute had a long history, and the letter dated 12 November 2007 from the police to the lawyers at pages 251 to 255 clearly shows that complaints were made to the police from 2003 onwards.  With that history of consistent disputes reported to the police, some of the defendants being warned, it is surprising that it has taken so long for legal steps to be taken.  The fact that legal aid for the High Court was denied really does not seem to me (having regard to the long history of disputes and the frustration that the plaintiff felt he was being vulnerable to harassment by the defendants) a good explanation of why he did not take steps earlier, may be in the District Court and acting in person. 

5. The view I take therefore, so far as costs is concerned (certainly on scale of costs), is that this is a claim that could have and should have been brought in the District Court and, if necessary, would have resulted in a much earlier resolution.  I am therefore of the view certainly on the scale costs that it should be on the District Court scale.  As to whether the plaintiff should recover all of the costs of the action 100% from the defendants, that was the subject of disagreement.

6. Mr Cheng, acting for the defendants, submitted to the court firstly that there should be no order as to costs.  Alternatively the costs order, if any, should be reflected by a small blame or small percentage, namely, may be a third to a quarter of the costs, be borne by the defendants. 

7. I think the starting point must be to look at what had been agreed by the parties.  Paragraph 1 of what has been agreed is that the defendants undertake not to harass, assault, intimidate or cause nuisance to the plaintiff; not to enter, remain or wait outside the plaintiff’s residence except on some specific dates; or to contact the plaintiff and his wife with a view of doing any of those acts above.  Paragraphs 2 to 10 relate to the family home, that is, 84A Pak Shek Wo San Tsuen where the ancestral altar is, they relate to matters such as how often and what dates the defendants can go there and for how long each occasion, what prior notice and what is to happen to the occupation and the use of those premises. 

8. On the basis that if the order that has been made, or agreed by the parties is in two parts :

(1)	Part 1 — to do with no harassment injunction; and
(2)	Part 2 — in relation to the use and access to the premises,

then it can be said, at the least, that the plaintiff has succeeded in half of his action.  I think it is a happy occasion that the parties have reached an agreement, but the costs must reflect the justice of what has been achieved.  It seems to me that therefore taking everything into account, the proper order for costs of the whole action should be half of the costs of the action, on a District Court scale, be given to the plaintiff against the defendants.  That is the order that I would make on costs.

9. The plaintiff’s costs is to be taxed in accordance with the Legal Aid Regulations.