LI XIAO YI v. TANG CHUNG WAH (also known as ALAN CHUNG WAH TANG)

CAMP 35/2026, [2026] HKCA 1310

On An Intended Appeal From [2025] HKCFI 5754 &

[2026] HKCFI 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 35 OF 2026

(ON AN INTENDED APPEAL FROM HCMP NO 406 OF 2025)

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D E C I S I O N

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Hon Chow JA (giving the Decision of the Court):

INTRODUCTION

1.  On 8 May 2026, this Court gave a judgment (“the Judgment”) dismissing the Defendant’s application for leave to appeal against the Order of Harris J dated 3 November 2025, by which the Judge dismissed the Defendant’s application for him to recuse himself from the substantive hearing of the Plaintiff’s Originating Summons seeking an order that the Defendant be committed for contempt of court.

2.  The Court also made a costs order that the Defendant shall pay the Plaintiff’s costs of the leave application, and summarily assessed the Plaintiff’s costs in the sum of HK$280,000.  The said costs order, including the assessment of costs, was an order nisi.

3.  On 22 May 2026, the Defendant applied by summons to vary the costs order nisi, seeking instead the following order:

(1)  the Defendant do pay the Plaintiff’s costs of the leave application to be taxed if not agreed on a party and party basis, with a certificate for one counsel of appropriate experience;

(2)  alternatively, the amount of costs summarily assessed be reconsidered and amended as appropriate.

4.  In support of the application, the Defendant filed an affirmation on 22 May 2026.  In that affirmation:

(1)  The Defendant pointed out that no basis of assessment of the Plaintiff costs was stated in the Judgment, and no certificate for any counsel was granted.

(2)  He submitted that the leave application was disposed of on paper and was a straightforward application.  It was not justifiable for the Plaintiff to engage a senior counsel as well as another counsel with substantial experience, and with both working with a team of senior and experienced solicitors, particularly when he was acting in person in the leave application.

(3)  The Defendant also said that he did not have any opportunity to comment on the Plaintiff’s amended statement of costs prior to the Court’s assessment.

5.  The Defendant’s submissions above are elaborated in his written statement dated 10 June 2026, and his written submissions in reply dated 30 June 2026.  We have considered those submissions, as well as the Plaintiff’s submissions dated 24 June 2026 in coming to the present decision.

DISCUSSION

6.  In respect of the Defendant’s submission at §4(1) above, the usual practice of the Court of Appeal is to allow the fees of 2 counsel in relation to substantive appeals, and the fee of 1 counsel in relation to interlocutory applications (including applications for leave to appeal).  These are the default positions, and apply unless a different order is expressly specified.  Further, the usual basis of assessment of costs is on a party and party basis.  Again, this is the default rule, unless a different basis of assessment is expressly specified.  This Court applied the above default rules when making its summary assessment of the Plaintiff’s costs.

7.  In respect of the Defendant’s submission at §4(2) above, the Court was well aware of the fact that the leave application was disposed of on paper without an oral hearing.  The application for leave to appeal was neither very simple nor very complicated.  The Court took those matters into account, as well as the fact that the intended grounds of appeal before it were essentially the same as those before the Judge, and the same legal team acted for the Plaintiff throughout the proceedings here and below[1] (see §42 of the Judgment).  As earlier mentioned, the Court’s summary assessment of the Plaintiff’s costs did not in fact allow the fees of 2 counsel.  The fact that the Defendant was acting in person is not itself a significant factor.  It is normally not appropriate, when assessing the costs of a party, to consider whether the opposite party is represented or the level of the opposite party’s representation.

8.  In respect of the Defendant’s submission at §4(3) above, the Court was aware that the Defendant had not had an opportunity to comment on the Plaintiff’s amended statement of costs dated 19 March 2026.  That was one of the reasons why the Court expressly provided that the costs order (including the assessment of costs) was an order nisi, so that the Defendant could, if he wished, apply to vary the assessment.

9.  There is no good reason why the Court should not, in accordance with its normal practice, assess the Plaintiff’s costs summarily.  To direct a taxation of costs would serve only to increase the time and costs of the parties.

10.  On a summary assessment, the Court adopts a broad brush approach.  We have reconsidered the Plaintiff’s amended statement of costs dated 19 March 2026 in light of the detailed points of objection raised in the Defendant’s written submissions.  We are satisfied that the original assessment of the Plaintiff’s costs in the sum of HK$280,000 on a party and party basis is fair and reasonable, with counsel’s costs being assessed in the sum of HK$210,000[2], and solicitors’ costs being assessed in the sum of HK$70,000.

DISPOSITION

11.  The Defendant’s summons dated 22 May 2026 is dismissed with costs to the Plaintiff, and the costs order nisi dated 8 May 2026 is made absolute.

12.  The Plaintiff’s costs of the present application are summarily assessed.  We have considered the Plaintiff’s statement of costs dated 7 July 2026. The Defendant has not filed any statement of objection pursuant to §6 of the Court’s directions dated 27 May 2026.  The Defendant’s application to vary the costs order nisi is a simple one.  We are not prepared to order the Plaintiff’s costs to be assessed on an indemnity basis as sought by the Plaintiff, and summarily assess the Plaintiff’s costs in the sum of HK$25,000.

[1] Both leading and junior counsel appeared for the Plaintiff at the hearing of the Defendant’s recusal application before the Judge on 3 November 2025, while only junior counsel attended the hearing of the Defendant’s application for leave to appeal before the Judge on 18 December 2025.

[2] In the Plaintiff’s amended statement of costs dated19 March 2026, there is some overlap in the work done by leading and junior counsel, but there are also differences in the scope of the work done by them.  An overall approach is taken to assess the costs of a reasonably competent counsel with appropriate experience undertaking the work described in the amended statement of costs.