THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LEE CHIU TAI, DECEASED AND ANOTHER v. TSANG LOI KI

DCMP 3485/2000

[2026] HKDC 1761

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3485 OF 2000

--------------------------------------

--------------------------------------

--------------------------------------

------------------------------------

DECISION ON COSTS

------------------------------------

Background

1.  This court refers to its decision of 26 May 2026 [2026] HKDC 935 where leave to appeal by the intended party Mr Fong (“the Leave to Appeal and Interim Stay Decision”) against the earlier decision of 31 October 2025 [2025] HKDC 1841 (“the Decision”) was dismissed but an interim stay was granted.

2.  The parties were ordered to file written submissions on costs and the following is the decision by way of paper disposal. This decision refers to the findings of the Decision, the Leave to Appeal and Interim Stay Decision and again adopts the same terms and abbreviations found in both of the aforesaid decisions.

3.  Mr Patrick Chong filed written submissions on behalf of Mr Fong and Messrs Stanley K Y Ng & Co filed their written submissions on behalf of the 1^st and 2^nd plaintiffs.

Appeals before the Court of Appeal

4.  From the submissions of the parties, there was an appeal before the Court of Appeal (“CA”) in relation to the HCA Judgment under CACV 23/2025 that should have been heard on 28 July 2026. Mr Fong renewed his application on 9 June 2026 against the Decision under CAMP  180/2026 to be heard by the CA and where Mr Fong has also invited the CA to hear both said appeals together at the said hearing that was fixed to be heard on 28 July 2026.

5.  From the submissions of the 1^st and 2^nd plaintiffs, related correspondence, and a letter from the Hon Mr Justice Chow, JA dated 12 June 2026, Mr Fong’s application to have both said appeals heard together was refused and the CA’s “determination in CACV 23/2027 may have a bearing on CAMP 180/2026, the parties should review their positions in CAMP 180/2026 in light of the outcome of CACV 23/2025.”

The Proposed Order

6.  Mr Chong’s submitted that the costs of the summons that led to the Leave to Appeal and Interim Stay Decision be in the cause of the renewed application for leave to appeal (“the Proposed Order”) since the respective positions of the parties will be protected given that (a) the 1^st and 2^nd plaintiffs will recover their costs if the CA refuses to grant leave, and (b) all costs (including the costs of the Leave to Appeal and Interim Stay Decision) will follow the final outcome of the appeal if the CA grants leave.

7.  Mr Chong further advanced his submissions by stating the Proposed Order aligns with this court’s finding that an interim stay was granted since the appeal in CACV 23/2025 remained unresolved and using the words of this court to avoid “a potentially chaotic and acrimonious aftermath” in the concluding paragraphs of the Leave to Appeal and Interim Stay Decision.

Analysis

8.  However as stated hereinabove, the CA has refused to hear both appeals together and presumably were not heard together on 28 July 2026. I agree with the 1^st and 2^nd plaintiff’s solicitors that there appears to be separate legal tracks being taken by the CA regarding both appeals which renders CACV 23/2025 sequentially first to be heard then onto CAMP 180/2026 at a later date. Despite Mr Chong arguing that the outcome from CACV 23/2025 might potentially and consequentially be impactful on CAMP 180/2026, as it stands, both appeals before the CA are nonetheless to be dealt with separately despite there may or may not be some after effects from one appeal’s outcome to the next.

9.  The 1^st and 2^nd plaintiffs submitted that the case of Institute of Management Accountants, Inc v Maesc Co Limited, HCA 280/2023, [2025] HKCFI 971, DHCJ KC Chan, 11 March 2025 is applicable to the present situation but notably based from a different type of factual basis such as matters therein related to a default judgment due to the defendant’s own default, indulgence was being sought from the court to set it aside were considered, as well as issues of delay on the part of the defendant in that case. As an aside, it was submitted by the 1^st and 2^nd plaintiffs that in Institute of Management Accountants, Inc (ibid) the defendants therein were found to have acted improperly and that the same can be found in the present case via the actions of Mr Fong. There is little doubt in my mind that Mr Fong in the present case cannot be found in any way to have acted with any impropriety whatsoever in these proceedings per se and to cast him in such a light is simply unfair.

10.  But what may be considered relevant from Institute of Management Accountants, Inc (ibid) was that DHCJ KC Chan did grant a temporary stay of execution on the default judgment but this did not make the defendant “the ultimate successful party” nor did it have any significant bearing on the exercise of the judge’s exercise of his discretion on costs particularly where “the temporary stay was imposed as a good case management measure”. As such, DHCJ KC Chan ultimately exercised his discretion and ordered the defendant to pay the plaintiff its costs of the defendant’s summons for an order to set aside default judgment (which failed) and stay of execution of the default judgment (which succeeded to the extent aforesaid, namely based on a “case management measure”) pending determination of whether the default judgment would be set aside or its application to vacate a related overseas judgment which at the time was also pending determination.

11.  As relating to the present situation, when considering the Decision and thereafter the Leave to Appeal and Interim Stay Decision, it is quite clear that the vast majority of time and effort was spent on the aspect of the leave to appeal. As can be seen in the Leave to Appeal and Interim Stay Decision when relating to the issue of whether interim stay should be granted, akin to the aspect of stay held in Institute of Management Accountants, Inc (ibid), the wording used by this court also reflects the reality that it was a matter of case management with these particular facts that led to the interim stay being granted as opposed to a decision based on substantive merits.

12.  Mr Chong has provided an initially attractive argument that, in the round, the Proposed Order would further the underlying objections of O 1A, r 1 of the Rules of the District Court, Cap 336H since it avoids piecemeal taxation or satellite disputes over costs of what Mr Chong describes as being “a partially successful summons”. But with respect to Mr Chong, despite his thoughtful and considered approach as aforesaid, nonetheless this court is convinced that costs should be awarded to the 1^st and 2^nd plaintiffs.

13.  It will not be forgotten that the Decision and thereafter the most substantive aspect of the Leave to Appeal and Interim Stay Decision (namely the leave to appeal against the Decision aspect) failed, it would be wrong in principle to withhold the right for the 1^st and 2^nd plaintiffs to recover costs where the event resulted in them not just being “partially successful” but in fact very significantly successful whereas the interim stay was not a success on merits but a matter of case management on the particular facts of this case.

14.  There are pending decisions to be handed down from the CA regarding CACV 23/2025 and CAMP 180/2026, their potential respective impact (consequential or mutual) and further consequential actions that may or may not be taken by the parties as a result of such impact remains undetermined. Again, it would be wrong in principle to withhold the right for the 1^st and 2^nd plaintiffs to recover costs where the event already resulted in them being very significantly successful.

Conclusion

15.  Given the foregoing matters, this court exercises its discretion and orders that costs of the Leave to Appeal and Interim Stay Summons be to the 1^st and 2^nd plaintiffs with a certificate for counsel.

16.  After considering the 1^st and 2^nd plaintiffs’ statement of costs, this court summarily assesses their costs at HK$65,000 payable forthwith.

17.  I thank Mr Chong and solicitors for the 1^st and 2^nd plaintiffs for their helpful assistance.