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CAMP 346/2021 & CACV 50/2022
(Heard together)
[2022] HKCA 482
CAMP 346/2021
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 346 OF 2021
(ON AN INTENDED APPEAL FROM HCMP 727 OF 2008)
____________
| BETWEEN |
|
|
| |
SECURITIES AND FUTURES COMMISSION |
Plaintiff |
| |
|
(Respondent) |
and |
| |
LU RUIFENG |
1st Defendant |
| |
TIN YIN KWAN |
2nd Defendant |
| |
CLEAR EXCEL LIMITED |
3rd Defendant |
| |
KAYDEN LIMITED |
4th Defendant |
| |
YAO WEN PEI |
5th Defendant |
| |
CHINA UNITED TELECOM LTD |
6th Defendant |
| |
|
(Applicant) |
| ____________ |
CACV 50/2022
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 50 OF 2022
(ON APPEAL FROM HCMP 727 OF 2008)
____________
| BETWEEN |
| |
SECURITIES AND FUTURES COMMISSION |
Plaintiff |
| |
|
(Respondent) |
| and |
| |
LU RUIFENG |
1st Defendant |
| |
TIN YIN KWAN |
2nd Defendant |
| |
CLEAR EXCEL LIMITED |
3rd Defendant |
| |
KAYDEN LIMITED |
4th Defendant |
| |
YAO WEN PEI |
5th Defendant |
| |
CHINA UNITED TELECOM LTD |
6th Defendant |
| |
|
(Applicant) |
| ____________ |
| |
(Heard together) |
|
| Before: |
Hon Au and G Lam JJA in Court |
| Date of Written Submissions: |
10 & 16 March 2022 |
| Date of Decision on Costs: |
31 March 2022 |
________________________________
DECISION ON COSTS
________________________________
Hon G Lam JA (giving the Decision on Costs of the Court):
1. Further to our judgment on the appeal dated 24 February 2022,[1] this is our decision on the incidence of the costs below.
2. The Commission’s summons for amendment and joinder was at first not controversial. The limitation point was only raised by China United in late November 2019, shortly before the directions hearing before Coleman J on 6 December 2019.
3. The affirmations made shortly thereafter (Chu Dongmei’s 4th affirmation filed on 20 January 2020 and Wong Mei Mei’s 17th affirmation filed on 9 March 2020) concerned the replenishment point, not the limitation point. The replenishment point was eventually not relied on by China United in the hearing for opposing the summons, but it is likely to feature in the trial of the originating summons.
4. In these circumstances, we consider that the costs up to and including those affirmations (9 March 2020) should be in the cause, with a certificate for two counsel for both parties.
5. At the hearing before DHCJ Rachel Lam SC on 16 July 2020, the only principal contention is the limitation point. It is true that China United submitted that it was formally unnecessary for the purposes of the Chabra jurisdiction for it to be joined, but that was very much a side issue, not taking up any substantial time or costs: see paras 30 & 32 of China United’s skeleton argument dated 14 July 2020 before the judge; see also letter of China United’s solicitors to the Commission dated 10 December 2019. In our view, China United should be treated as the successful party. Applying the principle that costs follow the event, it would be fair to order the Commission to pay China United’s costs after 9 March 2020, including the hearing before the judge, with a certificate for two counsel.
6. The costs of the submissions on costs are to be treated as part of the costs of the appeal and, therefore, pursuant to the order nisi made in our judgment dated 24 February 2022, be paid by the Commission to China United, with a certificate for two counsel.
(Thomas Au) Justice of Appeal |
(Godfrey Lam) Justice of Appeal |
Mr Horace Wong SC & Mr Norman Nip SC, instructed by Messrs. Securities and Futures Commission, for the Plaintiff (Respondent)
Mr Benjamin Chain & Mr Tony HH Chow, instructed by Messrs. C.L. Chow & Macksion Chan, for the 6th Defendant (Appellant)
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