CHING CHUNG YIN SECINA in her capacity as the executrix of the estate of CHING CHI SAU, deceased v. CHING CHUNG KAM ANDREW in his capacity as the executor of the estate of CHING CHI SAU, deceased

DCCJ 2920/2023

[2025] HKDC 722

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2920 OF 2023

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BETWEEN

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REASONS FOR DECISION

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INTRODUCTION

1.  On 27/1/2025, this Court heard the Plaintiff (“P”)’s summons and the Defendant (“D”)’s summons both taken out on 12/11/2024, seeking to vary this Court’s costs order nisi made on 29/10/2024 as contained in its decision on P’s appeal against Master’s order striking out her Statement of Claim (the “Appeal Decision”). In the Appeal Decision, this Court made the following orders:

(1) In relation to P’s appeal (“NoA 1”) against Master Melinda Chiang’s order made on 28/2/2024 striking out the Statement of Claim (the “SOC”), this Court only allows the “Interest Loss Claim” as pleaded therein be restored, whereas the “Benevolent Fund Claim” remains struck out;

(2) In relation to P’s appeal (“NoA 2”) against Master Matthew Ho’s order of 20/5/2024 directing P to personally pay D’s costs of D’s striking out Summons and costs of this action, such costs order be set aside;

(3) In relation to P’s Amended Summons dated 17/4/2024 seeking to adduce P’s 2^nd Affidavit of 20/3/2024 as fresh evidence for the hearing of the appeal (the “New Evidence Summons”), leave was so granted in relation to the evidence contained in paragraphs 12, 25, 26 and 27 of P’s 2^nd Affidavit only.

2.  In the Appeal Decision, this Court made the following costs order nisi:

(1) In relation to NoA 1, D shall personally pay 70% of P’s costs of the striking out appeal (exclusive of the costs of the New Evidence Summons) forthwith with certificate for counsel, to be taxed if not agreed;

(2) In relation to the New Evidence Summons, D shall personally pay 40% of P’s costs of such summons (including but not limited to the costs of P’s 2^nd Affidavit annexed thereto) forthwith with certificate for counsel, to be taxed if not agreed;

(3) In relation to NoA 2 for the costs below, there be no order as to costs of the Striking Out Summons.

3.  After carefully considering the parties’ submissions at the hearing on 27/1/2025, I dismissed both costs variation summonses, with no order as to costs. I reserved my reasons for decision at the time, and they are now set out below.

4.  For convenience sake, I would adopt herein the same set of abbreviations used in the Appeal Decision, and for reference, the background and procedural history of this case can be found in paragraphs 3 to 7, and 8 to 28 of the Appeal Decision.

5.  In the two costs variation summonses, the parties’ respective positions are as follows:-

(1) In relation to NoA 1,

(a) D’s position: D shall personally pay 50% of P’s costs of the appeal (exclusive of the costs of the New Evidence Summons) forthwith with certificate for counsel, to be taxed if not agreed;

(b) P’s position: D shall personally pay 100% of P’s costs of the appeal (exclusive of the costs of the New Evidence Summons) forthwith with certificate for counsel, to be taxed if not agreed;

(2) In relation to the New Evidence Summons,

(a) D’s position: Save that there be no order as to costs of and occasioned by the opposition of the New Evidence Summons, P shall personally pay D’s costs of and occasioned by the New Evidence Summons;

(b) P’s position: D shall personally pay 80% of P’s costs of such summons (including but not limited to the costs of P’s 2^nd Affidavit annexed thereto) forthwith with certificate for counsel, to be taxed if not agreed;

(3) In relation to NoA 2,

(a) D’s position: P shall personally pay 50% of D’s costs of the Striking Out Summons, inclusive of the costs of the hearing below, forthwith with certificate for counsel, to be taxed if not agreed.

(b) P’s position: D shall personally pay 100% of P’s costs of the Striking Out Summons, with certificate for counsel, to be taxed if not agreed.

6.  P further asks for costs of the proceedings in this action (other than those covered above) be in the cause.

ANALYSIS

The costs of the appeal

7.  In relation to NoA 1, the main plank of the arguments of Ms Abigail Liu, counsel appearing for D at the court below and in the appeal hearing, is that P sought to restore the whole of the SOC, but the Benevolent Fund Claim remains struck out after the appeal, so D was successful in resisting the striking out of that part of the SOC.

8.  Ms Liu however acknowledged that more time was spent in the appeal hearing for the parties to argue on the Interest Loss Claim, but P had nonetheless not indicated that she would not pursue to restore the Benevolent Fund plea. As such, Ms Liu submits that D should bear P’s costs of the appeal in relation to the Interest Loss Claim, whereas P should bear D’s on the Benevolent Fund Claim. Ms Liu submits that balancing the costs each party ought to pay the other, it is fair to order D to pay 50% of P’s costs in the appeal.

9.  It can be readily seen from Ms Liu’s argument that D’s position is not that he should not be ordered to pay P’s costs of the appeal, rather Ms Liu is effectively submitting that D should be ordered to pay less, speaking in terms of the quantum.

10.  With respect, I cannot agree. This Court has carefully surveyed and assessed the actual work done by each party on the Interest Loss Claim and the Benevolent Fund Claim respectively in the appeal as well in the hearing below before making the costs order nisi.

11.  Even after further reviewing the relevant materials before me, and giving careful consideration to the parties’ present costs submissions, my view remains unshaken that it is fair and reasonable for D to bear 70% of P’s costs of the appeal (exclusive of the costs on the New Evidence Summons). In particular, Ms Liu did not refer to the bulk of materials before the Court in the appeal hearing (nor discussing on the extent of time and effort spent by the respective parties thereon) to demonstrate why 50% as submitted by her is correct, whereas 70% as assessed by the Court is not.

12.  It the appeal hearing, it is doubtless that the main bone of contention has all along been focused on the Interest Loss Claim. This fact can be clearly discerned not only from the parties’ work done for preparing their affirmations and skeleton submissions, but also from the time spent in arguing over the same in the appeal, whereas the work done on the Benevolent Fund Claim was comparatively much lesser. This can indeed be reflected from Ms Liu’s precise and concise concluding remarks at the end of her skeleton submission lodged for the appeal saying that “[i]n this appeal, P did not put forward any argument to support the parts in the SOC about the Benevolent Fund ought not to be struck out”.

13.  I now turn to the costs submissions of Ms Karen WL Wong, counsel appearing for P both at the court below and in the appeal hearing. With respect, I have fully considered the same, and it is totally devoid of merits for Ms Wong to argue that P should be entitled to 100% of the costs of appeal when she lost in the appeal against the order striking out the Benevolent Fund Claim. This Court needs to say no more than that.

14.  Ms Wong appears to have suggested by way of oral submissions that this Court can adjust the appeal costs payable to P to an even higher percentage. But I failed to see any cogent reason advanced by Ms Wong to persuade this Court to do so, let alone that such fallback position was not even stated in P’s costs variation summons. This Court likewise rejects such fallback submissions.

Costs of the New Evidence Summons

15.  In advancing her costs submissions on the New Evidence Summons, Ms Liu fairly admitted that it is undeniable that the Henderson abuse ground for striking out was only specifically raised in D’s 2^nd Affidavit (i.e. his affidavit in reply filed for the Striking Out Summons). That notwithstanding, Ms Liu essentially urged this Court to consider that:

(1) the actual cause for the need of the New Evidence Summons is owing to P deliberately chose not to seek for an adjournment at the court below, and had this been done, the learned Master would have allowed the adjournment, and the New Evidence Summons would have become unnecessary;

(2) this Court pointed out in paragraph 82 of the Appeal Decision that the striking out appeal can be disposed of even without the need of relying on the matters deposed in P’s 2^nd Affidavit; and

(3) the costs in preparing for those parts of P’s 2^nd Affidavit disallowed by the Court have been wasted in any event, and D was successful in resisting the admission of the majority of the evidence sought to be adduced, and to make no order as to costs is more than reasonable.

16.  First, this Court has in fact carefully gone through the transcript of the hearing below before making the provisional costs order. It would appear doubtful if the learned Master would really grant any adjournment for P to adduce further evidence in reply (if an application had been made by P) in light of her reasoning in rejecting P’s unfairness argument, complaining that it would be unfair for P to deal with D’s Henderson abuse ground as she had no chance to put forth evidence to oppose such ground raised so belatedly in D’s affidavit in reply.

17.  Although Ms Liu submitted in the appeal hearing that in the course of hearing below, the learned Master was close to making an invitation to P to make an application to adjournment, I had reservation about this submission.

18.  Truly, according to the transcript, the learned Master did comment at certain point of time that P“could have taken out leave to file evidence and for the hearing be adjourned…”, but in my view this was said in the context of the learned Master testing the soundness of P’s unfairness argument. But when the reasoning of her decision is construed as a whole, I do not think one can fairly and confidently say that the learned Master would surely grant an adjournment had the application actually been made.

19.  The learned Master’s reasoning for her decision sheds light on this matter, and the relevant part of the transcript is quoted below:-

“... I would also briefly cover the plaintiff’s arguments that she did not have the chance to put forth evidence to oppose the ground of Henderson abuse. As the details of that ground was not raised in the defendant’s affirmation and only in the defendant’s affirmation of reply. I will not allow this objection to run as the plaintiff has not raised it in her written submissions as pursuant to the Practice Directions 5.4, paragraph 7[1].” (emphasis supplied)

20.  By applying the same logic of such reasoning, if an oral application for adjournment was made basing on the unfairness argument, it would be open to debate that the learned Master might also reject the application for there was no mention of taking such procedural point in P’s then written submissions either given the learned Master’s robust approach.

21.  But I would think that, more importantly, had D not taken P by ambush in the way he did (which the courts have time and again deprecated such unfair forensic tactics) but would instead have properly set out the Henderson abuse ground in his 1^st supporting affidavit, P could in my view have sufficient time to prepare for the evidence and submissions to answer the striking out application with respect to the Interest Loss Claim at the hearing below (just as what she did in the appeal hearing).

22.  Taking a fair and balanced view of the whole circumstances of this case, I think the chance of this happening is real and not fanciful, and if viewed thus, the need of filing the New Evidence Summons could have been avoided when the Master dealing with the Striking Out Summons in such circumstances could then have the benefit of reading such further evidence and submissions (as allowed and accepted by this Court) for determining D’s Henderson abuse ground and the related contentions.

23.  In this light, this Court would not hesitate to set its face sternly against such unreasonable conduct of D (and in fact every litigant who does the likewise) by holding him fully responsible for the consequences (including the corresponding costs consequences) for deploying such litigation manoeuvres, which are not only recipe for fueling the animosity between the parties, but would also bring about great wastage of time, costs, and judicial resources, as in the present case. Plainly, this is wholly against the CJR spirit.

24.  It is also owing to this that this Court would not view it too harshly against P and her legal team not responding astutely to the Henderson abuse ground raised shortly before the hearing of the Striking Out Summons. In a way, the situation that happened at the court below, is the very result that the ambush tactics were deployed to achieve, which however if exposed and its mischiefs rectified by the Court in the end, D has to pay for the price of it.

25.  To say the least, there is no appeal made by D against the following findings of this Court at paragraphs 96, 101, 102 and 106 of the Appeal Decision, and this Court would also reason accordingly when it comes to the consideration of costs:-

“91. In these circumstances, it would appear credible to this Court that whilst being stressed by two sets of litigations at the time, P’s rather unsatisfactory psychiatric condition can indeed adversely affect her ability to properly respond and gather the relevant details of HCMP 2339 Action and DCCJ 1583 Action/HCA 385 Action (as quoted in paragraph 83 above) to bring them to the learned Master’s attention to defend D’s Henderson abuse contention. In my view, neither would it be fair to blame P’s legal team for not being quick-witted enough, in hindsight, to appreciate the significance of these relevant details when they were also being taken by ambush at the time and not on a level playing field to respond to the Henderson abuse (raised only for the first time in D’s 2^nd Affidavit) under the difficult circumstances as highlighted above.

...

95. This is especially so when in my view the tight time frame as faced by P to respond to the Henderson abuse ground (particularly with respect to the interest loss claim) was in fact created or otherwise materially contributed by D choosing not to specifically raise it in his first supporting affidavit, but only leaving this to be done in his reply affidavit. By then, P could not file any further affidavit without leave of the court according to the earlier directions order made by Master Stanley Ho on 16/11/2023[29]. Whereas, under the original time frame, P and her legal team would have 28 days after the directions order to respond to the Henderson abuse ground if it had been properly set out in his first supporting affidavit.

...

101. I failed to see any good cause why all these contended circumstances to support the Henderson abuse ground, which are so carefully identified and presented in D’s affidavit in reply, cannot be properly put forward in his first supporting affidavit in the first place.

102. It is apparent that the purpose for doing so is to take P by ambush, which approach is contrary to the spirit of the CJR and time and again deprecated by the Court.

...

106. The factual matrix of this case is different. It is not the case here that the previous court documents were not available to P at the hearing below. Rather, it was owing to the limited time frame and she and her legal team were taken by ambush that they did not have a fair chance in the circumstances to properly go into such documents to gather the relevant details to effectively respond to the Henderson abuse ground.” (emphasis supplied)

26.  Second, the mere fact that this Court can, strictly speaking, dispose of the striking out appeal with respect to the Interest Loss Claim without the need of basing on the matters deposed in P’s 2^nd Affidavit (when there are already sufficient materials contained somewhere else in the hearing bundle), does not necessarily mean that it is unreasonable for P to adduce those paragraphs thereof as fresh evidence, being admitted by this Court under paragraph 83 of the Appeal Decision.

27.  This is because those relevant matters as deposed in P’s 2^nd Affidavit can certainly strengthen the view of this Court that it has come to its decision rightly in restoring the Interest Loss Claim. Also, they did help this Court during its reasoning process to trace into the other relevant materials (which it ultimately based on in reaching its conclusion on the Interest Loss Claim) as embedded in the voluminous home-made affirmations and other court documents prepared by P and D in different actions, which are rather difficult to read, especially when these documents are scattered all over the place. Further, one can always be wiser in hindsight. But before the Court pronounces its decision and reasoning, no party can have a crystal ball to predict with certainty how the Court would have approached the striking out appeal of the Interest Loss Claim, in particular, how to deal with the parties’ submissions on law and evidence to dispose of such issue.

28.  In this light, when considering the question of costs (which is a matter of the Court’s unfettered discretion), I think the need of the evidence adduced (from the Court’s perspective) is only one of the factors that should be taken into account. Among other factors, the Court should also consider whether it is reasonable for P to adduce such evidence in the circumstances she faced with when the appeal was lodged.

29.  And I think it is, especially noting that the evidence P deposed (and allowed by this Court) is indeed material to shed light on her subjective intention on the different purposes of the other litigations, viz DCCJ 1583/2020 action (which was later transferred to High Court under HCA 385 Action) and HCMP 2339 Action, taken out or maintained at different periods of time, and the detailed reasons behind the removal of the interest loss claim from DCCJ 1583 Action before the present action was instituted by her.

30.  Third, this Court has carefully considered and compared the extent of corresponding work done by the legal team on each side in relation to those paragraphs of P’s 2^nd Affidavit which are admitted by this Court as well as those not admitted. As such, not only the work done on P’s side, but also that on D’s side in relation to those paragraphs disallowed had actually been fully and duly taken into account before this Court decided on the fair and reasonable percentage of discount on the costs of the New Evidence Summons payable to P. Among other things, it is observed that these unwarranted materials also prompted D to incur substantial costs to file his 3^rd Affidavit, and to prepare for the corresponding submissions to object the same.

31.  On the other hand, D not just opposed to these unwarranted materials, but objected the admission of P’s 2^nd Affidavit in its entirety, and spent very substantial coverage in advancing different arguments by referring to quite a lot of authorities and evidence to maintain the striking out of the Interest Loss Claim but without success in the end.

32.  On P’s side, the main bulk of her skeleton submissions (in terms of both authorities and evidence drawn to this Court’s attention) are helpful to assist this Court to dispose of the striking out appeal and the New Evidence Summons. Apart from that, D alleged in his 3^rd Affidavit that it is P’s own decision not to file the new evidence below and hence Condition 1 of Ladd v Marshall test cannot be met. In response, P had to incur costs to prepare her 4^th Affidavit to respond by further elaborating the special surrounding circumstances and her personal conditions under which she was taken by surprise by D’s ambush at the time.

33.  In these circumstances, although only some limited number of paragraphs of P’s 2^nd Affidavit were admitted as fresh evidence for the appeal, very substantial time and effort had indeed been spent by P in preparing for the supporting law, evidence and submissions as required for adducing these paragraphs (ultimately allowed by this Court) and rightly countering D’s opposition against such admission.

34.  After balancing the respective work done by the parties in relation to the New Evidence Summons, to make no order to costs (as submitted by Ms Liu) is plainly insufficient and cannot duly reflect the respective extents of the parties’ actual work done. Not to mention that Ms Liu likewise did not refer this Court to the materials contained in the appeal hearing bundle to demonstrate the actual extent of work done on each side (not even by a rough measure) to support her submitted costs order.

35.  For completeness, since I have explained why there is a real chance that the New Evidence Summons could have been avoided if D had not taken P by ambush, I do not think it right in principle that D be allowed costs of and occasioned by the New Evidence Summons as submitted by Ms Liu.

36.  I now turn to P’s case. Ms Wong urged this Court to award P a higher percentage of costs up to 80% of the costs of the New Evidence Summons (instead of the original 40% as provided in my provisional costs order).

37.  This point can be disposed of shortly, for Ms Wong has similarly failed, like Ms Liu, to demonstrate the actual extent of work done on each side to justify 80% costs of the New Evidence Summons be awarded to P. Her submissions in this regard are plainly misconceived, or else disregarding this Court’s findings (against which there is no appeal lodged) that those paragraphs of P’s 2^nd Affidavit disallowed are irrelevant, unnecessary and/or inappropriate.

38.  As such, with respect, Ms Wong’s submitted figure is going to another extreme, and it is plainly wrong and inappropriate in light of this Court’s reasoning above.

39.  In light of the aforesaid, after carefully considered the parties’ submissions, my view on the percentage of costs of the New Evidence Summons that ought to be paid by D to P as stated in my earlier provisional costs order remains unchanged, and such order should likewise stand.

Costs of the Striking Out Summons

40.  Ms Liu submits that D is the partial winner of the Striking Out Summons, and hence D should be entitled to part of D’s costs of such summons and the hearing before the learned Master.

41.  On that basis, Ms Liu further submits that an appropriate costs order should be in place to reflect D’s partial success in the hearing before the Master. With respect, such submissions have conveniently ignored the fact that P also successfully opposed part of the striking out in the end. So, viewing from the appeal outcome, P should have been held as partial winner in opposing the Striking Out Summons also.

42.  Ms Liu goes on to submit that unlike the appeal hearing where there is a rather identifiable distinction of time spent on the submissions regarding the Interest Loss Claim and Benevolent Fund Claim, the submissions by the parties in respect of these two heads were more intertwined in the hearing before the learned Master. And, the logic behind D’s submissions regarding the Interest Loss Claim applied equally to that concerning the Benevolent Fund Claim, hence the submissions on the former was effectively repeated for the latter at the court below.

43.  With respect, I fail to see how these matters can really turn in D’s favour. Especially, when D actually put forward a wrong legal base, viz the Henderson abuse ground, for the learned Master to consider, for striking out the Benevolent Fund Claim. The proper reason for its striking out ought to be based on the doctrine of “issue estoppel” instead of the “Henderson abuse”, as explained in detail in paragraphs 70 to 79 of the Appeal Decision. Basically, the Benevolent Fund Claim was in fact already raised and determined upon in HCMP 2339 Action as observed by this Court in the Appeal Decision, rather than that it should have and could have been raised therein as contended by D in the court below. As such, it would not be right nor fair to allow costs spent by D in advancing submissions and legal authorities at the court below (which are in fact legally wrong) notwithstanding that the learned Master reached a right conclusion in striking out the Benevolent Fund Claim.

44.  Ms Liu also submits that P argued that she conducted HCMP 2339 Action in her personal capacity, whereas she sued in this action qua the executrix of the Deceased’s estate for opposing the striking out of both claims, but this was found against her by this Court. As such, the submissions made by P on the Interest Loss Claim at the court below remains to be validly rebutted by D, and this ought to warrant partial costs order in his favour.

45.  On that basis, Ms Liu further argued that P already exhibited the Re-re-amended SOC in HCA 385 in P’s 1^st Affidavit, which showed that the Interest Loss Claim was pleaded in that action, and P’s affidavit dated 14/12/2022 (for HCMP 2339 Action) as exhibited to D’s 1^st Affidavit (for this action) also stated that HCMP 2339 and HCA 385 Action were serving different purposes, and therefore P had sufficient materials before the learned Master to run valid argument to successfully oppose the striking out of the Interest Loss Claim, but did not do so.

46.  With respect, I find that by running the above arguments, D is effectively shying away from the fact that it is he himself who wrongly took out the striking out application with respect to the Interest Loss Claim in the first place. Not only that, D even prepared to deploy unfair ambush tactics (as discussed in detail above) that in this Court’s view was distracting his opponent’s attention away from the real battlefield as intended by him but he chose not to reveal until in his affirmation in reply. In these circumstances, as said, this Court would be slow to blame P (and her legal team) not being astute enough to identify and gather the relevant details from the documents as then available to them to effectively respond to the Henderson abuse ground when the ambush tactics were actually taking effect on them at the time.

47.  Paragraphs 95 to 102 of the Appeal Decision described in detail how D’s unfair forensic tactics operated to P’s prejudice, and the paragraphs 85 to 91 thereof dealt with the intense time restraint as so created upon P and her legal team before the hearing below. I need not repeat them here.

48.  I now turn to P’s position on the costs of the Striking Out Summons. It is plainly impossible for P to seek for 100% costs of such summons, for the Benevolent Fund Claim was rightly struck out though for a different reason by this Court.

49.  Ms Wong in paragraphs 18 and 19 of her skeleton submissions put forth a fallback position that P should be granted at least 75% of the costs of the hearing below, or else, she should be entitled to all costs before D’s 2^nd Affidavit since D only disclosed the Henderson abuse ground by then. I reject these submissions, for they likewise ignored that some substantial part of P’s costs was indeed incurred unjustifiably by raising invalid/ineffective points to oppose both heads of claims (see : paragraph 44 above). It would be unfair to award P for costs in relation to these matters. Further, these fallback positions are not stated in P’s costs variation summons, and no application was sought by Ms Wong to amend the summons in the last hearing. In these circumstances, I do not see it fair nor appropriate to allow P to run these fallback arguments in any event.

50.  Having carefully considered the overall circumstances of this case, it would still appear just and fair for this Court to make no order as to costs of the Striking Out Summons, and the costs order nisi in this regard ought to stand likewise.

51.  There is no need for this Court to deal with costs of the action (as proposed by Ms Wong) because Master Matthew Ho’s costs order (including the part directing D to pay the costs of the action) was fully set aside, and the present action has not yet come to its end.

CONCLUSION

52.  Due to the above reasons, both summonses for variation of the costs order nisi were dismissed. Since each party failed in toto in respect of his or her own summons, I see it just and fair to make no order as to costs of each summons under the circumstances of this case, and this Court heard no submission from counsel to the otherwise.

53.  Lastly, it remains for me to thank counsel for their assistance.