CHAN SHU LAM v. CHAN CHAU WAH

HCAP 6/2020

[2025] HKCFI 4593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 6 OF 2020

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DECISIONON APPLICATION
FOR LEAVE TO APPEAL^[1]

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A.  Background

1.  These proceedings concerned 2 substantive issues in dispute:-

(1)  whether the 2019 Will made by the Deceased was valid (the “Probate Issue”); and

(2)  whether the Defendant has a beneficial interest in the Property (the “Beneficial Ownership Issue”).  

2.  By judgment dated 6 June 2025 ([2025] HKCFI 2338) (the “Judgment”):-

(1)  I ruled in favour of the Plaintiff on the Probate Issue and held that the 2019 Will is valid (see Judgment, paras 82 to 132 and 142).

(2)  I ruled in favour of the Defendant on the Beneficial Ownership Issue and held that the Defendant has 14.25%^[2] beneficial interest in the Property (see Judgment, paras 33 to 81 and 141).

(3)  I made a costs order nisi that the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the Deceased’s estate (see Judgment, para 144).

3.  By summons dated 13 June 2025, the Plaintiff applied to vary my costs order nisi. He sought a costs order absolute that (i) the Defendant be personally liable to pay 80% of his costs; and (ii) 20% of the Defendant’s costs be paid by the Plaintiff or the Deceased’s estate^[3].

4.  By decision on costs dated 4 August 2025 ([2025] HKCFI 3338) (the “Decision on Costs”), I dismissed the Plaintiff’s application. For the reasons elaborated in the Decision on Costs, I took the following views:-

(1)  Bearing in mind the Probate Issue and the Beneficial Ownership Issue had a common factual background, instead of ordering 2 separate sets of costs, it would be just, fair, convenient and cost-effective to order 1 set of costs that holistically takes into account (i) the relative success achieved by the parties; (ii) the circumstances in relation to the present litigation; (iii) the conduct of the parties; and (iv) the time and resources spent on the 2 disputed issues. (see Decision on Costs, para 11)

(2)  The Defendant was the successful party in respect of the Beneficial Ownership Issue, and 35% of the costs in these proceedings was attributed to the Beneficial Ownership Issue (see Decision on Costs, paras 10(2), 12, and 22(1)).

(3)  The Plaintiff knowingly ran a false case on the Beneficial Ownership Issue, and the costs order must reflect the court’s disapproval of the Plaintiff’s dishonesty and undesirable litigation conduct, which substantially lengthened the proceedings and caused unnecessary complications. (see Decision on Costs, paras 13 to 14, and 22(5))

(4)  The Plaintiff was the successful party in respect of the Probate Issue, and 65% of the costs in these proceedings was attributed to the Probate Issue (see Decision on Costs, paras 10(1), 12, 15, and 22(2)).

(5)  There were indeed suspicious circumstances surrounding the execution of the 2019 Will, and the Defendant did have reasonable grounds to doubt the validity of the 2019 Will. The Deceased and the Plaintiff were responsible for creating the doubt and suspicion on the part of the Defendant, and it was reasonable for the Defendant to ask the court to investigate the validity of the 2019 Will. In the premises, insofar as the Probate Issue was concerned, it was justifiable to depart from the usual rules that costs should follow the event: Nina Kung v Wan Din Shin (No 2) (2006) 9 HKCFAR 800 at paras 10-19 (per Ribeiro PJ); Chiu Man Fu v Chiu Chung Kwan Ying (HCAP 9/2005, 28 May 2012) at para 4 (per Poon J, as he then was). (see Decision on Costs, paras 16 to 17, and 22(2))

(6)  However, the fact that the Defendant was the unsuccessful party in respect of the Probate Issue was still a factor that the court should take into account. In this connection, the Defendant’s litigation conduct was reasonable. Although she failed to challenge the analysis of Dr Wong, it was not unreasonable to insist that Dr Wong’s analysis be tested at trial. Further, the Defendant, by and large, focused on matters in respect of which there were doubt and suspicion. She did not adopt a “kitchen sink” approach in order to advance her own financial interests. (see Decision on Costs, paras 18, 22(3), and 22(4))

(7)  The Plaintiff knowingly raised various false allegations on the Probate Issue, and the costs order must reflect the court’s disapproval of the Plaintiff’s dishonesty and undesirable litigation conduct, which substantially lengthened the proceedings and caused unnecessary complications. (see Decision on Costs, paras 19 to 20, and 22(5))

(8)  Considering all the circumstances in the round, it would be just and fair to order that the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the Deceased’s estate (of which the Plaintiff is the sole beneficial owner under the 2019 Will).

5.  The Plaintiff is discontented with my Decision on Costs. By summons dated 14 August 2025, he seeks leave to appeal to the Court of Appeal.

B.  Legal Principles

6.  It is trite that leave to appeal will not be granted unless the court is satisfied that the intended appeal has a “reasonable prospect of success”. That means a prospect that is more than “fanciful” but without having to be “probable”. See Waddington Ltd & Ors v Chan Chun Hoo Thomas (HCMP 1326/2017, 18 October 2017) at para 3 (per Kwan JA, as she then was).

7.  It has been suggested that the Court of Appeal will not lightly interfere with a trial judge’s exercise of discretion in the award of costs. In Up Energy Development Group Ltd (in Liquidation) [2023] HKCA 536 at para 8, Kwan VP, citing Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419 at para 15 and Lakhan v Wu Wing Tat [1987] 3 HKC 54 at 58H and 61D, stated:-

“The approach of the appellate court in an appeal against a costs order is well established. The Court of Appeal will not interfere with the exercise of the trial judge’s discretion in the award of costs unless it was shown that the judge failed to exercise the discretion, or exercised it upon a false principle, or did not exercise it judicially, or that the exercise of discretion was demonstrably flawed. The Court of Appeal must be very careful not to interfere with the judge’s exercise of the discretion which has been entrusted to him and not substitute its discretion for that of the trial judge, unless satisfied he was plainly wrong.”

8.  In Baylis Baxter v Sabath [1958] 1 WLR 529 at 533 (which was applied by Woo JA in Ho Shu Kwong Wilson v Chiang Chun Yuan [2002] 3 HKLRD 419 at paras 14 and 25), Jenkins LJ stated:-

“The Judge has seen and heard the witnesses and attended to the whole course of the proceedings, and he is obviously in the best position to decide whether one side has behaved so badly in the matter as to justify that party being deprived of costs.”

“…any comparison to be made of the conduct or misconduct of the parties on each side is a matter for the judge, and he is entitled to weight one against the other if he finds that one party has behaved particularly badly…”

C.  Deliberation

9.  A draft notice of appeal is annexed to the Plaintiff’s summons dated 14 August 2025. There are 3 intended grounds of appeal.

C1. Ground 1

10.  Under ground 1, the Plaintiff suggests that I failed to take into account his argument that as the Defendant failed to make proper enquiries on the existence of the 2019 Will, she should bear personal liability for necessitating these proceedings unnecessarily.

11.  It is puzzling as to why the Plaintiff would suggest that I did not take into account his argument. This was not the case. As stated in paragraphs 8 and 9 of the Decision on Costs:-

“8. Insofar as the Probate Issue is concerned, Ms Ng and Ms Wong accepted that in a probate dispute, the court may, depending on the circumstances, depart from the general rule that costs should follow the event if (i) the litigation is caused by the conduct of the testator or the conduct of the residual beneficiary; or (ii) there are circumstances giving rise to a reasonable need to investigate the validity of the will: see Nina Kung v Wan Din Shin (No 2) (2006) 9 HKCFAR 800 at paras 10-19 (per Ribeiro PJ); Chiu Man Fu v Chiu Chung Kwan Ying (HCAP 9/2005, 28 May 2012) at para 4 (per Poon J, as he then was).

9. Nonetheless, Ms Ng and Ms Wong submitted that none of these exceptions applied. In gist, they contended that:-

(1) The Defendant had strong reason to suspect that the Deceased had executed a new will subsequent to the 2017 Will, and she should not have taken steps to obtain probate based on the 2017 Will.

(2) The Defendant failed to carry out reasonable enquiry regarding the existence and validity of the 2019 Will.

(3) In light of the available evidence, it was unreasonable for the Defendant to insist on challenging and disputing the 2019 Will, and she was a hostile litigant.

(4) Thus, the usual rule of costs follow the event should apply, and the Defendant should pay the Plaintiff’s costs.”

(emphasis added)

12.  Obviously, for those reasons elaborated in paragraph 16 of the Decision on Costs (which will not be repeated here), I rejected the Plaintiff’s argument:-

(1)  On the evidence before the court, I was of the view that there were indeed suspicious circumstances surrounding the execution of the 2019 Will, and the Defendant’s doubt and suspicion (which were caused by the unreasonable conduct of the Deceased and the Plaintiff) were understandable.

(2)  Thus, the Defendant was reasonable to ask the court to investigate the validity of the 2019 Will. She had valid reasons to bring the matter to trial.

(3)  In fact, the suspicious circumstances surrounding the 2019 Will were only dispelled upon the court’s investigation at trial after hearing the live evidence of the crucial witnesses (ie Dr Hung, Madame Chung and Ms Ho).

(4)  Accordingly, I was unable to accept the Plaintiff’s suggestion that the Defendant should have (i) known that the 2017 Will was not the last will made by the Deceased; and (ii) succumbed to the Plaintiff’s claims based on the 2019 Will at an early stage.

13.  Put simply, whilst I did not lose sight of the Defendant’s pre-action conduct, I was of the view that she acted reasonably all along. She had sound reasons to believe that the 2017 Will was valid and that the 2019 Will might not be valid. I was unable to discern any unreasonable conduct and/or breach of duties on her part.

14.  In this connection, it is futile for the Plaintiff to keep harping that the Defendant should have carried out more investigation before applying for probate based on the 2017 Will. This suggestion was utterly unreal. The Defendant could not have cross-examined Dr Hung, Madame Chung and Ms Ho and tested their evidence before the trial in these proceedings took place.

15.  In the premises, the present case must fall within the exceptions mentioned in Nina Kung (supra) at paras 10-19 and Chiu Man Fu (supra) at para 4, and (insofar as the Probate Issue was concerned) it was justifiable to depart from the usual rule that costs should follow the event: see Decision on Costs, para 8.

16.  In light of my findings, I do not see any room for contending that these proceedings were necessitated as a result of the unreasonable conduct and/or breach of duties on the part of the Defendant.

17.  In any event, I am inclined to accept the submissions of Mr Stephen Siu^[4] (for the Defendant) that (i) the Plaintiff’s argument on the grant of probate in respect of the 2017 Will is a red herring; and (ii) it is not open to the Plaintiff to pursue this argument. In this connection:-

(1)  As pointed out by Mr Siu, it was not the Plaintiff’s pleaded case that the Defendant failed to make proper enquiries on the existence of a latter will. As such, the proprietary in respect of the Defendant’s application for grant of probate was not fully explored during the trial.

(2)  In the premises, putting aside the fact that the Plaintiff’s criticism against the Defendant was unreal and had no merits, it appears to me that Mr Siu was correct in pointing out that it would be unfair for the Plaintiff to criticize the Defendant with regard to a matter that was not properly or fully explored at trial. Obviously, the Defendant did not have sufficient opportunity to come up with a full response in her evidence.

18.  I am of the view that the Plaintiff’s contentions under ground 1 have no merits at all and are unarguable.

C2. Ground 2

19.  Under ground 2, the Plaintiff contended that I erred in taking into account the fact that the Plaintiff completely stonewalled the Defendant from the Deceased’s affairs before she passed away: see Decision on Costs, para 16(10). The Plaintiff suggested that this was an irrelevant factor that shed no light on whether the Defendant exercised due diligence before applying for grant of probate based on the 2017 Will.

20.  The Plaintiff’s contention has no substance.

21.  As pointed out in paragraphs 8 and 17 of the Decision on Costs (citing Nina Kung (supra) at paras 10-19; Chiu Man Fu (supra) at para 4), if the litigation was caused by the conduct of the testator or the conduct of the residual beneficiary, this is a reason for departing from the general rule that costs should follow the event.

22.  In the premises, in paragraph 16(10) of the Decision on Costs, I pointed out that the Plaintiff’s unreasonable conduct of stonewalling the Defendant from the Deceased and concealing the whereabouts of the Deceased from the Defendant had strengthened the Defendant’s suspicion regarding the 2019 Will.

23.  The matters mentioned in paragraph 16(10) of the Decision on Costs are plainly relevant to the question of whether the exceptions mentioned in Nina Kung (supra) at paras 10-19 and Chiu Man Fu (supra) at para 4 were applicable.

24.  In any event, even if the Plaintiff’s unreasonable conduct were ignored, I would still have held that the present case falls within the exceptions mentioned in Nina Kung (supra) at paras 10-19 and Chiu Man Fu (supra) at para 4:-

(1)  For the reasons elaborated in paragraphs 16(1) to (9) of the Decision on Costs, I was of the view that it was understandable why the Defendant would have doubt and suspicion in regard to the circumstances in which the 2019 Will was executed, and it was reasonable for her to ask the court to investigate the validity of the 2019 Will.

(2)  For the reasons elaborated in paragraphs 16(4) to (5) of the Decision on Costs, I was of the view that the Deceased’s conduct was unreasonable, and she was responsible for creating the doubt and suspicion on the part of the Defendant.

25.  I cannot see how the Plaintiff can wriggle out of the exceptions mentioned in Nina Kung (supra) at paras 10-19 and Chiu Man Fu (supra) at para 4.

26.  In my view, the Plaintiff’s contentions under ground 2 also have no merits and are unarguable.

C3. Ground 3

Apportionment

27.  It appears that the Plaintiff takes issue in regard to my assessment that 65% of the costs in these proceedings was attributed to the Probate Issue and 35% of the costs was attributed to the Beneficial Ownership Issue.

28.  Based on the formulation of his summons dated 13 June 2025, the Plaintiff seemed to take the view that 80% of the costs was attributed to the Probate Issue and 20% of the costs was attributed to the Beneficial Ownership Issue.

29.  I accepted that the Defendant merely claimed 15.25% beneficial interest in the Property, and she was only awarded 14.25% beneficial interest. However, as evidenced by the contents of the Judgment (see paras 5 to 13, 33 to 40, 61, and 65 to 81), the parties filed substantial evidence on the Beneficial Ownership Issue, and at the trial, there were extensive cross-examination and submissions on matters and events that took place more than 3 decades ago.

30.  The Beneficial Ownership Issue was not straightforward at all. It did take up a substantial amount of time and resources of the parties.

31.  I am of the view that it would be just and fair to assess that 35% of the costs in these proceedings was attributed to the Beneficial Ownership Issue. 

Exercise of Discretion

32.  The Plaintiff then went on to contend that even assuming that 35% of the costs in these proceedings was attributed to the Beneficial Ownership Issue, I still erred in the course of exercising my discretion. In particular, the Plaintiff contended that:-

(1)  As the unsuccessful party in respect of the Probate Issue, the Defendant should pay 65% of his costs. Thus, I erred in (i) not ordering the Defendant to bear costs; and (ii) ordering that 65% of the Defendant’s costs be borne by the Deceased’s estate.

(2)  The Defendant merely succeeded on the Beneficial Ownership Issue, which took up 35% of the costs. Thus, I was wrong to award the Defendant 65% of her costs. This exceeded her entitlement of 35% by as much as 30%.

33.  It is incorrect for the Plaintiff to assume that exercise of discretion on costs is a mechanical arithmetic exercise. As pointed out in the Decision on Costs, this was not how I approached the matter. Whilst I took into account the relative success achieved by the parties, importantly I also took into account the general conduct and litigation conduct of the parties as well as the circumstances relating to the present litigation.

34.  Insofar as the relative success of the parties was concerned, I took into account that:

(1)  There was no question that the Defendant was the successful party in respect of the Beneficial Ownership Issue. (see Decision on Costs, paras 6 and 12)

(2)  As regards the Probate Issue, although the Defendant was the unsuccessful party, the present case fell within exceptions mentioned in  Nina Kung (supra) at paras 10-19 and Chiu Man Fu (supra) at para 4. As pointed out, whilst the Defendant was all along reasonable in asking the court to investigate the validity of the 2019 Will, the Deceased and the Plaintiff were responsible for creating the doubt and suspicion on the part of the Defendant. Thus, the general rule that costs follow the event should not apply. (see Decision on Costs, paras 15 to 17)

35.  Insofar as the general conduct and litigation conduct of the parties and the circumstances relating to the present litigation were concerned:- 

(1)  As pointed out, there were suspicious circumstances surrounding the 2019 Will. It was reasonable for the Defendant to bring the case to trial, such that the court could investigate the matter. In this connection, the Deceased and the Plaintiff were responsible for creating the doubt and suspicion on the part of the Defendant, and their conduct was not reasonable. (see Decision on Costs, paras 15 to 17, and paragraph 22(2))

(2)  As evidenced by paragraphs 18 and 22(3) of the Decision on Costs, I took into account that the Defendant continued to challenge the 2019 Will, despite Dr Wong’s retrospective analysis (which was available sometime in April 2022). However, in my view, it was not unreasonable for the Defendant and her legal representatives to insist that Dr Wong’s analysis be tested at trial. 

(3)  I was of the view that the general litigation conduct of the Defendant and her legal representatives was reasonable and sensible. They did focus on the key matters in respect of which there were doubt and suspicion. They did not adopt a “kitchen sink” approach. (see Decision on Costs, para 22(4))

(4)  In contrast, the litigation conduct of the Plaintiff was unreasonable. He dishonestly ran a false case on the Beneficial Ownership Issue. As to the Probate Issue, he  raised various false accusations dishonestly and deliberately. As a result, these proceedings had been complicated and lengthened, and the costs incurred by the Defendant had been increased unnecessarily. It was necessary for the court to express its disapproval of the Plaintiff’s dishonesty and unreasonable conduct. (see Decision on Costs, paras 13 to 14, 19 to 20, and 22(5))

(5)  Considering all the circumstances in the round, I was of the view that it would be fair and reasonable to order that the Defendant be entitled to recover 65% of her costs, which would effectively be borne by the Plaintiff (who is the sole beneficiary under the 2019 Will). (see Decision on Costs, para 22)

36.  In light of his animosity towards the Defendant, I can understand why the Plaintiff is displeased with my Decision on Costs. However, I cannot see how the Plaintiff could suggest that I exercised my discretion erroneously. 

37.  I am not of the view that Ground 3 is arguable.

D.  Conclusion

38.  For all the above reasons, I am not of the view that the Plaintiff’s intended appeal has a reasonable prospect of success; nor am I of the view that there is any reason in the interest of justice why the Plaintiff’s intended appeal should be heard.

39.  Accordingly, I dismiss the Plaintiff’s summons dated 14 August 2025.

40.  Costs should follow the event.

41.  I make a costs order nisi that the Plaintiff should pay the Defendant’s costs in respect of the summons dated 14 August 2025 to be taxed if not agreed with certificate for 2 counsel.

42.  I thank Ms Queenie Ng, Ms Michelle Wong, Mr Stephen Siu and Ms Stephy Lo for their helpful assistance.