LEE WONG WAI LING WINNIE v. CHEUNG CHIN WAI

HCA 338/2026

[2026] HKCFI 3779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 338 OF 2026

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DECISION

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A.   INTRODUCTION

1.  The plaintiff is a practising solicitor whose firm represented the defendant in another action. 

2.  The defendant was not satisfied with the plaintiff’s legal service, and as a result she visited the plaintiff’s office on 6 and 16 February 2026.  While there is a factual dispute between the parties as to what exactly happened on those occasions, it is undisputed that the defendant felt frustrated as to how the plaintiff handled her court case and that one of the purposes of her visits was to get a breakdown of costs / an itemised bill (“Cost Information”) from the plaintiff.

3.  On 20 February 2026, the plaintiff applied and obtained an ex parte injunction against the defendant (“the Injunction Order”) from another Judge, on the basis that the defendant had harassed the plaintiff during the defendant’s aforesaid visits at the plaintiff’s office.  In gist, by virtue of the Injunction Order, the defendant had been restrained from attending the entirety of the floor on which the plaintiff’s firm was situated.

4.  On 25 February 2026, the plaintiff commenced this action and sued the defendant for harassment.

5.  On 26 February 2026, the plaintiff took out a summons for the continuation of the Injunction Order (“the Continuation Summons”) which was returnable before this Court on 6 March 2026 (“the Call-Over Hearing”).

6.  At the Call-Over Hearing, upon the defendant’s undertaking not to attend the entirety of the floor on which the plaintiff’s firm was situated:

(1)  the Injunction Order was discharged;

(2)  this Action was dismissed by consent with no order as to the costs thereof (except the costs of and incidental to the ex parte hearing on 20 February 2026 and to the Continuation Summons (“the Outstanding Cost Issue”)).

7.  As the parties could not agree on the Outstanding Cost Issue, directions had been given for the determination of the said issue.

8.  This Decision deals with the Outstanding Cost Issue.

B.   THE LEGAL PRINCIPLES

9.  It is trite that the court has a wide discretion on costs. 

10.  Although strictly speaking this Court is only dealing with the costs of an interlocutory application herein, I am of the view that the principles summarized by Au-Yeung J in Famous Marvel Co Ltd and Others v Conversant Group Ltd and Others (HCA 2153/2009, unreported, 29 October 2012) are applicable:

“22. There is no dispute that even if a case is settled except as to costs, the Court still has power to determine which party should be liable for costs. There is no tradition for there to be ‘no order as to costs’ in such a scenario. I am guided by the following principles in deciding costs:

(i) The Court is to decide if the party seeking costs has substantially obtained the reliefs sought in the litigation: Re Chinese United Establishment Ltd, HCCW 291/1994, 5 October 1995, Rogers J (as he then was), approved in CACV 214/1995; Lai Yuet Chun v Super Deluxe International Limited & ors, HCCW 186/2001, 3 June 2003 Kwan J (as she then was).

(ii) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the Court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. Brawley v Marcynski (No.1) [2003] 1 WLR 813.

(iii) The Court will first consider if it is in a position to say what the likely outcome after trial would have been. If it is not in a position to do so, the order may well be no order as to costs: Brawley v Marcynski (No.1),at para 18, Longmore LJ; followed in BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] FSR 150.

(iv) The Court may permit parties to adduce evidence on the question of costs: Ta Tung China & Arts Ltd v Fontana Restaurant Ltd [1999] 1 HKLRD 404; Lai Yuet Chun v Super Deluxe International Limited & ors, at para 12. However, to say that the parties must go to trial in order to resolve any outstanding questions of costs would be contrary to the underlying objectives enshrined in RHC Order 1A rules 1 and 2: Graham M Morley v Kwan Wo Wan & others, HCA 4366/2003, 30 December 2009, Recorder Jat SC.

(v) A broad brush can be taken by referring to all matters already laid before the Court, eg pleadings, correspondence, witness statements, transcripts of evidence and the terms of the settlement order: c.f. BCT Software Solutions Ltd v C Brewer & Sons Ltd, at para 9; Graham M Morley v Kwan Wo Wan & others.

(vi)  The objective is to do justice between the parties without incurring unnecessary Court time and consequently additional cost: Brawley v Marcynski (No.1).”

11.  In Re Lucky Ford Industrial Limited [2013] 3 HKLRD 550, Harris J, having cited Famous Marvel Co Ltd and Others (supra), also had the following to say:

“13. The position is more complex where a case has settled and where the terms of settlement do not involve the court granting any relief and the petitioner only obtains something substantive under the terms of an agreement. That appears to have been the case in Super Deluxe, which was decided in 2003. Kwan J explains how the matter came before her in paragraph 2 of her judgment:

‘The substantive reliefs sought in the petition have already been dealt with, as the petitioner, her husband Mr Ng Ho Ming Sherman (“Mr Ng”) and the respondents have entered into a Deed of Settlement on 11 February 2002, by which the respondents agreed to purchase the petitioner’s shares in the Company at the price of HK$309,811.00 and to procure the Company to repay the loans made by the petitioner to the Company in the sum of HK$439,998.00. They have not, however, reached any settlement regarding costs. Pursuant to the Deed of Settlement, the parties applied for a Tomlin order and an order was made by consent on 20 February 2002 by which all further proceedings herein, save and except proceedings relating to the question of costs, are stayed on the terms as set out in the schedule to that order except for the purpose of carrying the said terms into effect. After the respondents have fulfilled their obligations in the Deed of Settlement, a joint application was made for the dismissal of the petition with the exception of the claim for relief in respect of the costs of the proceedings.’

14. In my view having regard to O1A r1 the correct approach to determining costs in cases which do not involve the court granting substantive relief is for the Court first to consider the terms of settlement and assess whether the petitioner has obtained substantially what he sought in his petition. If he did it will not be necessary or appropriate for the Court to consider evidence and arguments directed to the merits of the case and whether or not the petitioner would have been successful if the petition had gone to trial. The petitioner will be treated as having been successful and entitled to his costs.

15.  There may be cases in which it is not clear from the terms of settlement whether it can fairly be said that the petitioner has been substantially successful.  In such cases the Court will have to determine whether it is probable that the petitioner would have been substantially successful.  This may require a consideration of the merits of the case, but this process should be as economical as is consistent with the Court’s duty to decide the issue fairly.”

(emphasis added)

12.  In YBL v LWC (No 2) [2017] 2 HKLRD 783 at [10], Lam VP (as he then was) also stated that:

(1)     Whilst the courts often started with the proposition of costs following the event, it was no longer the general rule but a starting point (Hung Fung Enterprises v Agricultural Bank of China [2012] 3 HKLRD 679 applied);

(2)     There had to be some justification for depriving a successful party of his costs;

(3)     In measuring who was the successful party and the extent of his success, the court must examine the reality and justice of the case. Thus, in Hysan Development Co Ltd v Town Planning Board (No 2) (2016) 19 HKCFAR 635, no order as to costs was made notwithstanding the success of the appellants in reversing the Court of Appeal’s decision because they did not achieve the full objects of their appeals;

(4)     In addition, under O.62 r.5, the court in exercising its discretion should take into account the matters set out in r.5(1) as might be appropriate in the circumstances;

(5)     Order 62 r.5(2) highlighted conduct which the court could take into account including whether it was reasonable for a party to take an issue, the manner in which the matter was pursued or defended, the extent of success, and conduct before, as well as during the proceedings;

(6)     If a successful party had brought the litigation upon himself or had done some wrongful act in the course of the transaction, he could be deprived of his costs.

13.  It is also indisputable that the Court may take the conduct of the parties into account when deciding on costs.  In this regard, Order 62 rule 5 of the Rules of the High Court (Cap.4A, Laws of Hong Kong) provides that:

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A(2);

(d) any written offer which is expressed to be ‘without prejudice save as to costs’ and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes—

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d)  conduct before, as well as during, the proceedings.”

C.   DISCUSSION

C1.     Liability of costs

14.  Both parties ask for costs. 

15.  The plaintiff argues that she should be awarded costs because:

(1)  She is the effective winner;

(2)  But for her application, she would not have obtained the relief she sought;

(3)  The Call-Over Hearing was clearly necessary;

(4)  There is no need and inappropriate for the Court to entertain arguments directing at the underlying merits of the injunction application.

16.  On the other hand, the defendant argues that:

(1)  There was material non-disclosure by the plaintiff when she applied for the Injunction Order;

(2)  There was no urgent need to obtain the ex parte application on 20 February 2026;

(3)  The plaintiff failed to send any letter before action or tried to explore other ways to resolve the matter;

(4)  The Call-Over Hearing could have been avoided if the plaintiff accepted the defendant’s undertaking which was offered on 4 March 2026 at around 11:18am;

(5)  The incidents on 6 and 16 February 2026 would not have happened but for the plaintiff’s failure to comply with her professional obligations as a solicitor.

17.  I am of the view that the plaintiff is clearly the “winner” in the present case because she had obtained the Injunction Order on 20 February 2026, which was effectively continued by virtue of the undertaking given by the defendant at the Call-Over Hearing.  The Injunction Order and the defendant’s undertaking are of the same terms.  In other words, the plaintiff has successfully obtained through court proceedings a protection that the defendant would not attend the plaintiff’s office again.

18.  In such circumstances, on the basis of the authorities cited above, the plaintiff should be entitled to costs.

19.  With respect, I am also of the view that the defendant’s arguments are unmeritorious.

20.  Firstly, given my view that the plaintiff should be regarded as the “winner” herein, it is unnecessary to consider the merits of the ex parte injunction application nor the Continuation Summons.  The defendant’s arguments on “material non-disclosure” are therefore irrelevant.

21.  In any event, I do not agree that the plaintiff’s omission to mention that the defendant’s visit at the plaintiff’s office on 6 February 2026 was made pursuant to a pre-arranged appointment has any relevance.  That is just a matter of background.

22.  Secondly, I do not think it is appropriate to consider the urgency of the ex parte application, particularly when the learned Judge had accepted that the matter was so urgent that the Injunction Order was made there and then. 

23.  For the avoidance of doubt, insofar as it is necessary, I also find that the plaintiff was justified to make the ex parte application on 20 February 2026, since even the defendant admitted that she did say that she would attend the plaintiff’s office until she obtained the Cost Information which she had asked for.

24.  Thirdly, I cannot see how the plaintiff could be criticised for not sending any letter before action nor trying to explore other ways to resolve the matter before she commenced the present action.  The fact of the matter is that despite the defendant’s engagement of another firm of solicitors, she continued to confront the plaintiff herself.  It is unreasonable and unrealistic to say that the plaintiff should have anticipated that the defendant would undertake not to attend the plaintiff’s office if the plaintiff would care to make such a request before commencing the present action. 

25.  On this matter, the defendant’s willingness to give an undertaking on 4 March 2026 is irrelevant, because by then the Injunction Order had already been made by the Court.

26.  Fourthly, I disagree that the plaintiff should be blamed for not accepting the defendant’s offer which was made on 4 March 2026 at around 11:18am, when the defendant’s proposal at the time was “no order as to costs” in relation to the whole action.  In my view, that is clearly unacceptable, and therefore it was reasonable for the plaintiff not to accept the same.

27.  In the circumstances where the parties could not agree on costs, the Call-Over Hearing was unavoidable. 

28.  Fifthly, I do not think it is appropriate to go into the details of the alleged professional misconduct on the part of the plaintiff.

29.  For the above reasons, I hold that the defendant should be held liable for the plaintiff’s costs of and incidental to the ex parte hearing on 20 February 2026 and to the Continuation Summons.

C2.    Quantum of costs

30.  There is no dispute that the plaintiff’s costs should be summarily assessed.  For such a purpose, the plaintiff has lodged 2 statements of costs both dated 28 May 2026, one of them covers her costs up to 6 March 2026, and the other one covers the period between 6 March 2026 and 29 May 2026.

31.  The plaintiff has also lodged a supplemental statement of costs dated 25 June 2026 covering the period after 29 May 2026 together with her written submissions in reply.  In my view, it would be more convenient to this Court if the entirety of the plaintiff’s costs are assessed at one go.  I will give further directions on this under Section E below.

D.   ORDER

32.  For reasons of the aforesaid, I order that the plaintiff’s costs of and incidental to the ex parte hearing on 20 February 2026 and to the Continuation Summons be borne by the defendant.

E.   COSTS

33.  Costs in relation to the argument on costs should follow the event.

34.  I therefore order on nisi basis that the defendant shall pay the plaintiff the costs occasioned by and incidental to the argument on costs, which should be assessed summarily.

35.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.

36.  If no application for variation of the aforesaid costs order nisi is made within time:

(1)  The plaintiff shall lodge and serve her composite statement of costs within 7 days after the expiry of the said 14-day period. The composite statement of costs shall incorporate all her costs of and incidental to the ex parte injunction application, the Continuation Summons and on the arguments on costs. 

(2)  The defendant shall lodge and serve her composite statement of objection within 7 days thereafter. 

(3)  Summary assessment of the plaintiff’s costs will be conducted on paper (no matter whether any statement of objection is lodged by the defendant within time) thereafter. 

(4)  The costs assessed shall be paid by the defendant within 14 days after assessment.

37.  In the event any application for variation of the aforesaid costs order nisi is made within time, the summary assessment of the plaintiff’s costs will be withheld until after the said application for variation has been disposed of.