GORDON CHAN v. CHAN CI KA CINDY

DCCJ 5024/2023

[2026] HKDC 377

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5024 OF 2023

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DECISION ON COSTS

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Introduction

1.  By a Decision dated 23 January 2026 (the “Decision”):

(1)  I made an order in terms of the summons issued by the defendant, Chan Ci Ka Cindy (陳思嘉), on 9 July 2025 (the “Stay Summons”), by which she sought an interim stay of this action pending the determination of High Court Probate Action No HCAP 14/2023 (the “Probate Action”);

(2)  I dismissed the summons issued by the plaintiff, Gordon Chan, on 19 June 2025, by which he sought an order that unless Cindy Chan served signed witness statements as to facts within 14 days, she be debarred from doing so (the “Unless Order Summons”), as well as the summons issued by Gordon Chan on 15 September 2025, by which he sought an order transferring this action to the Court of First Instance of the High Court (the “Transfer Summons”).

2.  As noted in paragraph 2 of the Decision, with respect to the Transfer Summons, in paragraph 1(1) of his Reply Note dated 9 January 2026, Mr Yu, counsel for Gordon Chan, confirmed that he would not pursue the transfer.

3.  In paragraph 45 of the Decision, for the reasons stated therein, I made a costs order nisi that the costs of (a) the Stay Summons; (b) the Transfer Summons; and (c) the Unless Order Summons be in the cause of this action, with certificate of counsel.

4.  By a summons issued on 5 February 2026, Cindy Chan seeks an order that the costs of the Transfer Summons by paid by Gordon Chan forthwith and summarily assessed, with certificate of counsel; and that the costs of the Stay Summons and the Unless Order Summons be in the cause, with certificate of counsel (the “Costs Summons”).

5.  The Costs Summons was returnable before me on 27 February 2026. At the hearing, Mr Yu continued to represent Gordon Chan, and Mr Au continued to represent Cindy Chan.

6.  In this Decision on Costs, I will adopt the abbreviation used in the Decision.

Legal principles

7.  It is trite law that costs are within the discretion of the Court. Section 53(1) of the District Court Ordinance (Cap 336) provides:

“The costs of and incidental to all proceedings in the Court … are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid.”

8.  As the Transfer Summons was an interlocutory application, Order 62, rule 3(2A) of the Rules of District Court applies:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any interlocutory proceedings it may, subject to this Order, order the costs to follow the event, or make such other order as it sits fit.”

9.  The Court is entitled to take into account all the circumstances set out in Order 62, rule 5, including: (a) the underlying objectives set out in Order 1A, rule 1; (b) the conduct of all the parties, which encompasses (i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (ii) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (iii) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

10.  In the course of case management, the court has moved away from the strict doctrine that anybody who asks for anything has to pay costs. The usual order is that costs be “in the cause,” because it is all part and parcel of trial preparation and case management: Chung Hiu Bun v Yeung Yiu Sing & Anor, HCPI 123/2010 (unrep, 28 July 2011), per Bharwney J at paragraph 9.

11.  Where the interlocutory application is more in the nature of a direction application, there may be good justification for ordering that the costs of and occasioned by the application be costs in the cause, because such application is:

“… an application for a direction to facilitate the further prosecution of the claim or conduct of the defence, and/or the proper conduct of the eventual trial. There is not much ‘right’ or ‘wrong’ in the application itself, and the underlying ‘merits’ of the application are really determined by the general merits of a party's case. Therefore, it would be generally fair in those circumstances to order the costs to be in the cause.”

See Man Fong Hang v Man Ping Nam & Ors, HCA 7935/1998 (unrep, 26 September 2002), per DHCJ A Cheung (as the CJ then was) at paragraph 20. The example given in Man Fong Hing was an application for leave to adduce further or supplemental expert evidence, necessitated by the need to comment on the opponent’s expert report or to deal with matters arising after the earlier report was disclosed. Man Fong Hang was applied in Ling Man Yiu Raymond t/a Build Tech Engineering Co v Yau Luen Metal Works Ltd [2022] HKDC 18, where DDJ George Lam observed at paragraph 53 that “costs in the cause” is the usual order for consolidation applications.

12.  The late abandonment of a summons, or certain paragraphs therein, results in wastage of time, costs, and judicial resources. In particular, the costs, time, and resources incurred by the opposing party in addressing those paragraphs could have been saved, and the distraction spared. Such late and equivocal abandonment should be discouraged and, depending on the facts, may constitute special and unusual features justifying an order for indemnity costs: China Shanshui Cement Group Ltd & Ors v Tianrui (International) Holding Company Ltd [2021] HKCFI 2745 at paras 29-30 per K Yeung J.

Counsel’s submissions

13.  In seeking an order that the costs of the Transfer Summons be paid forthwith by Gordon Chan to Cindy Chan and summarily assessed, Mr Au essentially relied on two grounds.

14.  First, Mr Au submitted that the manner in which the Transfer Summons was framed prior to its abandonment is highly relevant to the Court’s exercise of discretion. As framed, the Transfer Summons sought, in practical terms, to reposition the current action so as to sidestep the injunction granted by DHCJ Gary Lam in the Conflict of Interest Action dated 18 March 2025 (the “Injunction Decision”). It effectively created a backdoor to bypass the Injunction Decision, which had already shed light on the conflict of interest Gordon Chan would face in participating in overlapping proceedings. Mr Au further submitted that this threatened to undermine both the rationale and the protective effect of the Injunction Decision, and that it was for this critical reason that Cindy Chan was compelled to oppose the Transfer Summons[1].

15.  Second, Mr Au submitted that, against that background, Gordon Chan only confirmed he would not pursue the Transfer Summons in his Reply Note dated 9 January 2026 — the final working day before the Monday hearing. By that late stage, Cindy Chan had already incurred substantial costs, time, and resources in preparing to respond to the application. In particular, Cindy Chan had prepared and filed extensive Skeleton Submissions and Reply Submissions addressing the substantive legal issues of why a stay was preferable to transfer and consolidation. Following Gordon Chan’s eleventh‑hour indication that the Transfer Summons would no longer be pursued, Cindy Chan’s work uniquely attributable to resisting the transfer was rendered entirely wasted. Mr Au relied on the case of China Shanshui[2].

16.  On his part, Mr Yu submitted that the Transfer Summons was justifiably taken out[3], that Gordon Chan was justified in withdrawing the Transfer Summons[4], and that in ordering the costs of the Transfer Summons to be in the cause, the Court was exercising a case management decision, the usual costs order being costs in the cause[5].

Discussion

17.  I will address Mr Au’s first ground first.

18.  With respect, I do not agree that the Transfer Summons, if granted, would have the effect of bypassing the Injunction Decision. It must be recalled that the injunction granted by DHCJ Gary CC Lam was in the following terms: “[Edward C.T. Wong & Co], whether by its partner Gordon Chan or other partners, associates or other staff, shall be restrained from representing and advising Chan Man Lung Samson in HCAP 14/2023, until the outcome of the trial or further order of the court.” Even if an order had been made in terms of the Transfer Summons, the injunction would still stand. Gordon Chan, the plaintiff in the Defamation Action, remains at liberty to choose his legal representatives.

19.  It is unclear from the Transfer Summons what orders were being sought – whether the Defamation Action was to be tried at the same time with, before, or after the Probate Action. What is clear, however, is that in the Probate Action, Samson Chan would be represented by his new firm of solicitors, while in the Defamation Action Gordon Chan would be represented by a firm of his own choice (likely Edward C T Wong & Co). There was therefore no question of bypassing the Injunction Decision at all.

20.  Regarding Mr Au’s second ground, I agree with his submissions contained in paragraphs 6-8 of his Skeleton Submissions, as set out in paragraph 15 above. I would add the following observations:

(1)  I agree with the observations of K Yeung J in paragraphs 29-30 of China Shanshui that the late abandonment of a summons, or some of the reliefs sought therein, should be discouraged, as it results in wastage of time, costs, and judicial resources. Whilst His Lordship’s observations were directed at whether such late abandonment justified an indemnity costs order, I am of the view that, a fortiori, they justify an order that the party making such late abandonment be required to pay the other party’s costs.

(2)  In the present case, as noted in paragraph 2 of the Decision, it was in paragraph 1(1) of his Reply Note dated 9 January 2026 that Mr Yu confirmed that Gordon Chan would not pursue the transfer. As Mr Au correctly pointed out, 9 January 2026 was a Friday, the final working day before the Monday hearing on 12 January 2026. By that late stage, Cindy Chan had already incurred significant costs, time, and resources in preparing to respond to the Transfer Summons.

(3)  In my view, while the usual order for the costs of a case management decision is that costs be in the cause (Chung Hiu Bun and Man Fong Hang), those cases did not involve the late abandonment of a summons. In the circumstances, it is fair that Gordon Chan be ordered to pay to Cindy Chan the costs of the Transfer Summons.

(4)  I do not consider that the reasons advanced by Mr Yu[6] would alter the Court’s decision to order Gordon Chan to pay to Cindy Chan the costs of the Transfer Summons. First, the reasons set out have not been verified by affidavit evidence and amount to no more than submissions from the Bar table, which are not admissible. Secondly, the submission that the withdrawal of the Transfer Summons would enable the court to “focus on the real issue, i.e., whether the Defamation Action should be stayed,” is, with respect, unconvincing. An interim stay of the Defamation Action pending the determination of the Probate Action would necessarily mean that the Transfer Summons would fail.

Conclusion

21.  Accordingly, I vary the costs order nisi as follows:

(1)  The costs of the Transfer Summons shall be paid by Gordon Chan to Cindy Chan, in any event to be taxed if not agreed, with certificate of counsel; and

(2)  The costs of the Stay Summons and the Unless Order Summons shall be in the cause, with certificate of counsel.

22.  I do not consider it appropriate for the costs to be paid forthwith and summarily assessed. The Transfer Summons was an interlocutory matter heard together with the Unless Order Summons and the Stay Summons, the costs of which have been ordered to be in the cause. Immediate payment would introduce unnecessary complexity and potential prejudice. It is more efficient and just for the costs to be dealt with at the conclusion of the proceedings. Furthermore, although Cindy Chan’s Statement of Costs purported to distinguish between those attributable to the Transfer Summons and those attributable to the other two summonses, the basis of the apportionment remains unclear. In these circumstances, the Court does not have sufficient material to fairly and accurately access the quantum of the costs incurred specifically in relation to the Transfer Summons. Taxation in the ordinary course will ensure accuracy and fairness.

23.  I also order that the costs of the Costs Summons shall be paid by Gordon Chan to Cindy Chan, in any event to be taxed if not agreed, with certificate of counsel.

24.  Finally, I wish to express my gratitude for the assistance which Mr Yu and Mr Au have rendered to the Court.