SECURITIES AND FUTURES COMMISSION v. LU RUIFENG AND OTHERS

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)

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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)

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DECISION ON COSTS

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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 4^th affirmation filed on 20 January 2020 and Wong Mei Mei’s 17^th 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.