LEUNG WAI CHEUNG v. OCTEL NETWORKS LTD AND ANOTHER

CAMP 145/2020

[2021] HKCA 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 145 OF 2020

(ON AN INTENDED APPEAL FROM DCCJ NO 4454 of 2017)

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D E C I S I O N

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

1.  This Court handed down our judgment on 7 May 2021 (“the CA Judgment”) dismissing the plaintiff’s application for leave to appeal (“the Leave Application”) against the judgment of Deputy District Judge Barbara Wong dated 15 May 2020 (“the Judgment”).

2.  In the CA Judgment, we also ordered at [53] - [54] of the CA Judgment that the plaintiff was to pay the defendants costs of the application, summarily assessed at the sum of HK$80,000, based on the statement of costs filed by the defendants.  We further ordered that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap 4A) (“the RHC”), as the plaintiff’s application was devoid of merits, no party may request the determination to be reconsidered at an oral hearing inter parte.

3.  In light of the aforesaid orders, on 1 June 2021, we dismissed the plaintiff’s Notice of Motion of 13 May 2021 which titled “Notice for Reconsideration – Oral Hearing Requested” pursuant to Order 59, rule 2A(8) of the RHC.

4.  On 18 May 2021, the plaintiff filed a list of objections to the defendants’ statement of costs, challenging this court’s summary assessment of the costs in the Leave Application.

5.  On 4 June 2021, the plaintiff filed another Notice of Motion (“the Notice of Motion”) seeking leave to appeal against the CA Judgment and the summary assessment of costs to the Court of Final Appeal.  In that, he advanced two grounds:

“1) The summary cost is unreasonable and excessive as explained by the plaintiff’s list of objections filed on 18 May 2021 because most of its work was done and claimed for litigation cost in the application for leave to appeal in the District Court according to its judgment dated 14 August 2020

2) There are clear merits provided by the prevailing facts that the leave for appeal should be granted. Hence, the plaintiff should not be liable to pay the defendants’ solicitor cost.”

6.  He also attached three appendices to the Notice of Motion.  Appendix A was a “witness statement of Wong Siu Lai – supplement” dated 29 December 2020, which stated to be filed on 13 May 2021.  However, this witness statement was neither adduced by way of a proper application nor was it placed for consideration in the court below and before this court in the Leave Application. Plainly, it could not satisfy the criteria laid down in Ladd v Marshal [1954] 1 WLR 1489[1] and certainly does not provide any assistance to challenge the CA Judgment.  We would not have regard to it for the present purpose.  Appendix B was his opening statement filed in the court below, which we already considered in the Leave Application.  As to Appendix C, it was a WhatsApp message between himself and the 2^nd defendant allegedly made on 13 May 2021.  The plaintiff sought to rely on this message to argue that the claimed costs of the defendants in the Leave Application were excessive as the 2^nd defendant, shown in the message, told him at that time that he had paid the solicitors HK$35,000.

7.  In the plaintiff’s written submissions of 17 June 2021, he repeated his arguments on the merits of his challenge against the Judgment (paragraphs 9 - 18).  As to costs, he referred to his list of objections filed on 18 May 2021.

8.  It transpires from the plaintiff’s Notice of Motion and written submissions that his appeal consisted mixed grounds of appeal against the CA Judgment and the summary assessment on costs.

9.  After perusing the Notice of Motion and the written submissions, we agree with the Registrar of Civil Appeals’ directions that this application shall be dealt with on paper.

10.  In relation to the plaintiff’s application for leave to appeal against the CA Judgment, it is clearly an abuse of process, as section 63B of the District Court Ordinance (Cap 336) stipulates that the refusal of leave to appeal by this Court is final, and there cannot be any appeal against that refusal of leave: see Lee Chui Ying v Chan Yee Ling Elaine [2021] HKCA 857, per Lam VP at [6].  We will therefore dismiss it on this basis alone.

11.  In any event, the grounds of appeal are entirely without merits as the plaintiff is effectively repeating his contentions made before us in the Leave Application, without identifying with any sufficient particularities why our reasons for rejecting them in the CA Judgment are wrong.  They also do not involve any question of great general or public importance.  No leave to appeal to the Court of Final Appeal should be granted under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

12.  As to our summary assessment of costs, we have reviewed the plaintiff’s list of objections, which effectively say that the charges are excessive as many of the works stated in the statement of costs are repetitive and unnecessary.

13.  None of the matters raised in the plaintiff’s list of objections shows that our summary assessment in reducing the defendants’ costs from HK$90,620 to HK$80,000 is wrong in any material aspects.  In reaching the said sum, we conducted a broad brush review of the defendants’ statement of costs and already deducted the items (ie, items C2 to C4 in the statement of costs) that we regarded as unnecessary: see [53] of the CA Judgment.  In this respect, the purported statement in the WhatsApp messages by the 2^nd defendant that he had paid to the solicitors HK$35,000 at that time does not assist the plaintiff’s contention that the costs as summarily assessed is still excessive or unreasonable.  This is so as the fact that the defendants as a client had paid certain sum on account to their solicitors at a particular time, without more, does not show that the final actual costs incurred by the solicitors in the matter is excessive or unreasonable.

14.  In the circumstances, we dismiss the Notice of Motion.  We further order that costs of this application be to the defendants.

15.  The defendants have filed a statement of costs dated 23 June 2021 asking for the sum of HK$73,164.  The plaintiff has in response filed his list of objections dated 28 June 2021, effectively saying that the costs claimed are overly excessive and unreasonable, and contends that a sum of HK$8,165 ($7,801 + $364) is reasonable.

16.  We agree that the costs claimed by the defendants are plainly excessive in light of the straightforward nature of this application, in particular the fact that the plaintiff is effectively repeating his submissions made in the Leave Application and that the solicitors have been representing the defendants in that application.  There are therefore no justifications for charging all the works again in perusing all the documents relating to the earlier application (including the trial bundles and the Judgment).  All these items should be disallowed (items D2 and D3).  Although the Notice of Motion and the plaintiff’s supporting written submissions are lengthy, the time said to be involved for items D5 (perusing the supplemental witness statement of Wong Siu Lai), D7 (conducting legal research) and D8 (drafting skeleton submissions) is still plainly excessive.  We will reduce them (a total of four hours) to two hours.  We will therefore grossly reduce the costs from HK$73,164 to HK$36,764 ($73,164 ‑ $15,600 ‑ $10,400 ‑ $10,400). We therefore order the plaintiff to pay the defendants’ costs, summarily assessed at HK$36,764.