TO SZE ON, the Personal Representative of the Estate of TO CHEONG LAM, deceased v. YIM TIN FOOK, since deceased (YIM LOK MAN WINNE, appointed by Order dated 10 May 2024 to represent the Estate of YIM TIN FOOK, deceased) AND OTHERS

FAMV No 142 of 2025

[2026] HKCFA 1

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 142 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO 5 OF 2020)

___________________________

___________________________

DECISION

___________________________

Mr Justice Lam PJ:

1.  The Appeal Committee granted the Applicant leave to appeal on 12 December 2025. The substantive appeal is scheduled to be heard on 10 March 2026. By a summons of 22 December 2025, the Applicant sought, amongst other things, to vary the Standard Order in Schedule 1 to PD 2.3 concerning security for costs. The Standard Order requires security for costs in the sum of HK$400,000 to be paid in respect of each respondent. In place of that, the Applicant sought an order that there be no security for costs payable in respect of all the respondents.

2.  There are 8 respondents in the intended appeal. The 1^st and 2^nd Respondents opposed the summons in respect of security for costs and lodged their submissions on 29 December 2025. The 4^th and 6^th Respondents indicated through their solicitors that they take a neutral position in the intended appeal and have no submission in response to the summons. The other respondents have not lodged any response.

3.  The practice of this Court in respect of security for costs is well established. As held by Fok PJ in Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd (2015) 18 HKCFAR 283, the maximum amount of security provided for under section 25(3)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484 will ordinarily be ordered in respect of each respondent.

4.  In his 4^th affirmation and submissions, the Applicant relied on the following matters to contend that there should be no security for costs in favour of the 1^st and 2^nd Respondents:

(a)     They were represented by the same solicitors and counsel and incurred one set of legal costs;

(b)     Their position is identical in pleadings and presented the same case;

(c)     Their lots are adjacent to each other and their use of the lots were dependent on each other;

(d)     They did not succeed fully in the Court of Appeal and were only awarded with 50% of their costs;

(e)     The costs in the lower courts have not been taxed;

(f)     They advanced additionally the Milmo point in the appeal for which they should provide security for costs. 

5.  Whether taken individually or collectively, I am not impressed by any of these grounds. I am satisfied that the Applicant should pay security for costs in respect of the 1^st Respondent in the sum of HK$400,000 and also security for costs in respect of the 2^nd Respondent in the sum of HK$400,000.

6.  The first three grounds are basically repetition of a similar line of argument which had been rejected in Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd (2015) 18 HKCFAR 283. Fok PJ said at [6]:

“Thus, where common causes of action are separately advanced by multiple respondents, those respondents are each eligible to be considered as entitled to security for costs at the Court’s discretion. The Court may decline to exercise its discretion to order security for costs but it will ordinarily not declined to do so …”

7.  Here, each of the 1^st and 2^nd Respondents claimed possession against the Applicant in respect of their respective lots of land. I see no basis for not applying the Tsit Wing approach.

8.  The fact that the final outcome of taxation is not clear is not a reason for tampering with the manner in which the discretion on security for costs is to be exercised since the security for costs is ordered in respect of the costs of the appeal before this Court. The security is paid into the Court, not to the respondents.

9.  Whilst the Milmo point does add to the complexity of the case, it would not have been necessary for the 1^st and 2^nd Respondents to take it to this Court if there is no appeal by the Applicant. In terms of the net result, the Milmo point would not achieve a different result from that as provided in the judgment of the Court of Appeal. Hence, I reject the suggestion that the 1^st and 2^nd Respondents should provide security for costs on the Milmo point.

10.  I do not regard the Milmo point as having the effect of substantially prolonging the hearing of the appeal or adding to the costs of its preparation. Hence the inclusion of it does not necessarily lead to a reduction of the costs payable by the Applicant in the event he only loses on the other questions.

11.  In any event, taking account of the overall level of complexity of the legal issues and the reasonable representation for the respondents, I do not regard an order for security for costs of HK$400,000 each for the 1^st and 2^nd Respondents as excessive or disproportionate or otherwise unfair.

12.  I also see no evidential basis for suggesting that the requirement to pay security in these sums to the 1^st and 2^nd Respondents would stifle the appeal.   

13.  The position with regard to the other respondents is different. None of them took active part in the proceedings below or in the application in this Court for leave to appeal. The 4^th and 6^th Respondents informed this Court through their solicitors that they adopt a neutral stance in the appeal. Subject to one rider, I am prepared to order that the Applicant is not required to pay any security for costs in respect of the other respondents.

14.  The rider is in respect of the 3^rd, 5^th, 7^th and 8^th Respondents. Though they had not participated actively in the proceedings below, they still have the right to participate in the appeal (and the corresponding interest in having security for costs). Before I exercise the discretion to exempt the Applicant from paying security for costs in respect of these respondents, I would require the Applicant to file an affirmation of service of the summons on the 3^rd, 5^th, 7^th and 8^th Respondents to satisfy the Court that they have notice of the summons.

15.  For the purpose of effecting the service of the summons of 22 December 2025 on these respondents, leave is granted to the Applicant to serve the same by substituted service in the same manner as directed by the Registrar by his order on 20 November 2025.

16.  I direct that such affirmation of service be filed by the Applicant by 9 January 2026.

17.  The hearing date of 10 March 2026 was scheduled at the hearing before the Appeal Committee. It is well established that this Court would not adjust a hearing date easily. Having regard to the decision on security for costs above, there is no valid basis for changing the hearing date. The Applicant should have been advised about the need to pay security for costs before he brought the application for leave to appeal. As discussed above, the contentions he relied upon to resist payment of security in respect of the 1^st and 2^nd Respondents are wholly without merits.

18.  In respect of the other matters set out in the summons, I see no reason to depart from the directions given by the Registrar on 23 December 2025. Parties are expected to comply with the same. In particular, in view of the timeframe for preparation of the hearing of the substantive appeal on 10 March 2026, it is imperative to strictly adhere to the Registrar’s directions for filing and service of Cases and Record in para 2, in particular the direction for filing and service of the Cases in para 2(i), (ii) and (iii):

“i) the Applicant, or the Appellant in the appeal (referred to as D2 in the Appeal Committee’s determination dated 12 December 2025) do file and serve his Case on or before 13 January 2026;

ii) the Respondents do file and serve their respective Cases on or before 2 February 2026;

 iii)      Notwithstanding Rule 29 of HKCFAR, any Supplemental Case filed and served pursuant to leave granted by the Registrar thereunder has to be filed and served not later than 10 February 2026;”

19.  For the avoidance of doubt, the pending payment of security in accordance with my order herein should not provide an excuse for non-observance with these procedural directions. Even though final leave to appeal may not be granted in the meantime, the filing and service of Cases and Record for the appeal can be done in FAMV 142 of 2025 and then treated as documents filed in the FACV upon final appeal being granted.

20.  The question of service on the 7^th Respondent would have to be dealt with by the Registrar in the usual manner.

21.  In lieu of paras 1 to 3 of the Standard Order in Schedule 1 to PD 2.3, I make an order that leave to appeal to the Court of Final Appeal be granted to the Applicant on condition that the Applicant do within 14 days from the date of this order pay into Court, in respect of each of the 1^st and 2^nd Respondents, the sum of HK$400,000 as security for the due prosecution of the appeal and payment of all such costs as may become payable to each of the 1^st and 2^nd Respondents in the event of the appeal being dismissed for non-prosecution or of the Court ordering the Applicant to pay such respondent’s costs of the appeal.

22.  I also make an order in terms of paras 4 to 6 of the Standard Order. 

23.  I also make an order nisi that the Applicant shall pay the 1^st and 2^nd Respondents their costs of the summons. Subject to that, there be no order as to costs on the summons.