MR CHU KONG v. SUN MIN AND OTHERS

HCMP 3605/2016

[2026] HKCFI 3420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3605 OF 2016

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BETWEEN

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DECISION

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1.  This is my decision on the summons taken out by the 1^st, 3^rd and 4^th defendants on 23 April 2026 to vary the costs order nisi, which I made in para 104 of the decision handed down on 13 April 2026: see [2026] HKCFI 2087.

2.  That is a decision on what has been called “the election issue” in the present trial. I made a nisi order that the costs arising from the arguments on the election issue be in the cause of the overall contempt proceedings.

3.  In this variation application, I should consider the issue of costs afresh in the sense that the defendants do not bear any burden to show that the provisional views which I expressed for making the costs order nisi are wrong or unjustified: see Sir Elly Kadoorie & Sons Ltd v Samantha Jane Bradley [2024] HKCA 1070, para 8.

4.  Having heard counsel’s submissions, I have come to the view that the proper order to make is that the costs of the election arguments should form part of the costs of the 1^st, 3^rd and 4^th defendants’ no case submission.

5.  I consider that the following matters are the most relevant and material considerations.

6.  First, the election issue was identified as a preliminary issue to be resolved before the substantive no case submission was to be heard: see para 4 of the decision. In that sense, the election issue is a discrete issue. There is therefore a valid argument that “costs follow the event” is a suitable costs option, as technically speaking the issue has no linkage to the eventual outcome of either the no case submission or the contempt trial. That is the argument of the 1^st, 3^rd and 4^th defendants.

7.  Second, on the other hand, the election issue concerns the procedural aspect of the no case submission. As such, it can also be said that it is part and parcel of the no case submission. When viewed this way, it is logical to treat the costs of the election issue as part of the overall costs of the no case submission. That is in essence the plaintiff’s submission.

8.  Third, even if the court takes the view that the election issue is a discrete issue, while “costs follow the event” may be a naturally suitable option, the court should take into account all relevant considerations, if any: see Order 62, rule 5 of the Rules of the High Court, Cap 4A.

9.  In this regard, I repeat what I said in para 103 of the decision. There can be no dispute that the law on the election issue has been unsettled. That was indeed the very reason why the court, with the agreement of both sides, directed that it be resolved first. The issue was discussed by Kwan J (as she then was) more than 20 years ago, when she expressly acknowledged that the issue was not “an easy one”. See also Hong Kong Civil Procedure 2026 at 52/1/17 (penultimate paragraph) in which the editors comment that the issue is “unresolved”.

10.  In the meantime, in Hong Kong, save for the first instance decision in Pappadis (see footnote 4 of the decision), there has been apparently no reported case or published judgment in which the issue was touched on, discussed or ruled upon.

11.  Given the unsettled state of the law, I consider that it was reasonable conduct on the part of the plaintiff to put forward counter-arguments. When this factor is taken into account, even though the plaintiff ultimately lost the argument on the election issue, in my view, the “costs follow the event” option no longer seems to be the only naturally apt option.

12.  Fourth, I reject the 1^st, 3^rd and 4^th defendants’ submission that the plaintiff ought to have known that his position was unlikely to prevail. It was clear that there was no ready answer to the election issue. As I said in para 75 of the decision, I was initially attracted by the plaintiff’s contention that the defendants’ rights would not be affected by having to elect before the no case ruling.

13.  I also reject the defendants’ submission that in seeking to prevent them from making a no case submission without being put to an election, the plaintiff sought to deprive them of their entitlement to such a ruling. Whether the defendants were entitled to a ruling was the very question before the court on which the plaintiff had made legitimate arguments in a proper manner.

14.  On the whole, I am of the view that the election issue is one aspect, and part and parcel, of the no case submission. In any event, even if one takes the view that it is a discrete issue, for reasons stated above, I consider that the appropriate outcome would be that the costs of the election issue should form part of the costs of the no case submission.

15.  While there is no summons before me to vary the nisi order to that effect, of my own motion, I order that the nisi order be varied such that the costs arising from the arguments on the election issue, including the hearings on 5 and 8 December 2025, be in the cause of the no case submission, with a certificate for three counsel, to be taxed if not agreed.

(Submissions on costs)

16.  I order that the costs of the variation summons be in the cause of the no case submission.