IP KIT LEUNG v. CHAN SZE LAM trading as WANG CHUN ENVIRONMENTAL PROTECTION DEVELOPMENT COMPANY

DCPI 732/2022

[2025] HKDC 1448

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 732 OF 2022

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DECISION

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1.  On 30 July 2025, I handed down my judgment in Ip Kit Leung v Chan Sze Lam [2025] HKDC 1253 (“the Judgment”)  where I dismissed this action and made an order nisi (“the Order Nisi”)  that costs should be paid by the Plaintiff (“P”)  to the Defendant (“D”)  on a full indemnity basis, giving the parties the usual right to seek to vary it by taking out a summons for this purpose. P took out just such a summons on 13 August 2025 (“the Summons”)  and I heard it today. My decision is to dismiss the Summons for the following reasons. Unless otherwise stated, I shall in this Decision continue to use the abbreviations in the Judgment. As before, Counsel Mr Raymond Tsang acted for P and Counsel Mr Acorn Lau acted for D. Both Counsel had been helpful and I thank them for their assistance.

2.  The submission of P was simple.  It was suggested to me that P did not pursue an unarguable and hopeless claim, and P did not know his claim was doomed to fail from the start.  As such, so the submission went, costs should only be taxed on party-and-party basis.  I reject the submission as entirely false.

3.  As I had alluded to in the Judgment, P’s claim was a dishonest lie.  When one compares the SoC filed by P on 29 May 2023 with P’s own sworn oral evidence, it is obvious that the contents of the SoC were known to P to be either completely false or misleading.  P’s pleaded allegation that he was “not provided with any communication tool” was misleading and known to him to be misleading as P knew he had a mobile phone with him, and a mobile phone was a “communication tool”.  Similarly, P’s pleaded allegation that he was “left with no option” but to climb out of the cabin of the Excavator was false and known to P to be false since P clearly knew he could have sought help in other ways, and P could have just waited.  Most importantly, P’s pleaded allegation that he slipped was a dishonest lie since he had jumped from height by choice when P clearly did not have to.  It is extraordinary that P, having knowingly run a false and dishonest case, saw fit to take out the Summons.

4.  In resisting the Summons, Mr Acorn Lau, Counsel for D, drew my attention to §10 of Pak Siu Hin Simon v JV Fitness Ltd [2017] 6 HKC 110 at 112, where Au-Yeung J said this: -

“A plaintiff who made up a dishonest personal injuries claim should be penalized by costs on indemnity basis: Summers v Fairclough Homes Ltd [2012] 4 All ER 317, [2012] 1 WLR 2004, at §§52 and 53.”

5.  I agree with Au-Yeung J.

6.  I have independently checked what was stated by Lord Clarke JSC in Summers [2012] 1 WLR 2004 at 2022, and it was as follows: -

“As to costs, in the ordinary way one would expect the judge to penalise the dishonest and fraudulent claimant in costs. It is entirely appropriate in a case of this kind to order the claimant to pay the costs of any part of the process which have been caused by his fraud or dishonesty and moreover to do so by making orders for costs on an indemnity basis. Such costs orders may often be in substantial sums perhaps leaving the claimant out of pocket. It seems to the court that the prospect of such orders is likely to be a real deterrent.”

7.  I agree with Lord Clarke JSC.  Dishonest litigants deserve no sympathy. In my view, there is a need for us to deter litigants from abusing our legal system by knowingly running a false and dishonest case, wasting valuable public resources.  P’s scenario is a classic case where costs should be on indemnity basis.  It is shocking how P sought to argue otherwise.  In fact, as Lord Clarke JSC also mentioned in Summers [2012] 1 WLR 2004 (§56), imprisonment for contempt should also be considered.

8.  Mr Acorn Lau, Counsel for D, also drew my attention to §§25 & 26 of Lai Sin Yan Elsie v Tata Communications (Hong Kong)  Ltd [2020] 4 HKLRD 363 [2020] HKCFI 2066, where Bharwaney J said this: -

“The fact that the plaintiff is legally aided does not move me to decline the defendant’s application for its costs to be taxed on an indemnity basis… failing to grant an adverse costs order will serve as an encouragement to legally aided parties to pursue unrealistic and exaggerated claims, which will in turn be an unnecessary and unjustified strain on the public funds. I would go further and state that assigned solicitors and counsel have a professional duty to ensure that the Director of Legal Aid is promptly informed when they come to the view that the plaintiff does not have reasonable grounds to pursue his or her claim and that it is unreasonable for him or her to continue to receive legal aid. They may be met with wasted costs orders should their failure to perform their professional duty put the Director of Legal Aid at risk of having to pay indemnity costs out of the public fund.”

9.  I agree with Bharwaney J.  Given how hopeless and dishonest P’s case was, one may even say P should never have been granted legal aid to start with. However, I am not privy to the privileged discussions in P’s legal aid application and I do not know whether competent advice on merits had been sought by or given to the Director of Legal Aid, so I say no more on this.  I simply order that (1)  the Summons be dismissed; (2)  the Order Nisi be made absolute; (3)  the Costs of the Summons, summarily assessed by me at HK$54,315, be paid by P to D forthwith; and (4)  P’s own costs be taxed in accordance with the Legal Aid Regulations.

10.  On the costs claimed by D, I should add that I deducted a sum of HK$1,930 for “legal research” as I took the view that time spent on this should be covered by D’s claims for preparation for hearing and the Brief to Counsel, both of which I allowed in full.

11.  All other sums claimed by D were reasonable.

12.  I thank Mr Raymond Tsang, and Mr Acorn Lau, for their most able assistance.