THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF SO CHING WAN v. ASSEN LTD (IN LIQUIDATION) AND OTHERS

HCB 4475/2002

[2023] HKCFI 2153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 4475 OF 2002

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BETWEEN

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DETERMINATIONS FOR TAXATION REVIEW

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1.  This is the paying party’s application to review my rulings made at the taxation of the party-and-party costs claimed in the bill of costs of the 2^nd to 4^th respondents (the “Receiving Parties”) filed herein on 5 December 2019 (the “Bill”).

Brief Summary of Proceedings

2.  In this case, Mr So Ching Wan (the “Bankrupt”) was adjudged bankrupt on 19 August 2002 upon a creditor’s petition.

3.  Mr Alan Chung Wah Tang (“Mr Tang”) and Mr Wong Kwok Man (“Mr Wong”) were appointed as joint and several trustees of the property of the Bankrupt at a creditors’ meeting held on 14 November 2002.

4.  On 7 June 2016, Chung J made an order, pursuant to section 29(1) of the Bankruptcy Ordinance (Cap 6) (the “Ordinance”), requiring the respondents herein to provide answers and documents as set out in Annex A and Annex B of that order (the “2016 Order”).

5.  The application before Chung J was made by the applicant, described as “the Joint and Several Trustees of the Property of So Ching Wan (‘the Bankrupt’)”.

6.  On 12 October 2018, Mr Tang signed a summons (the “Summons”) taken out under section 29 of Ordinance and Order 45 of the Rules of the High Court (the “RHC”) against the respondents to enforce the 2016 Order. The 1^st respondent was in liquidation and Hom & Associates (“H&A”) acted for the 2^nd to 4^th respondents, ie the Receiving Parties. The applicant also issued another summons dated 6 November 2018 (which does not concern this taxation) seeking leave to continue these proceedings against the 1^st respondent retrospectively given its liquidation.

7.  The applicant named on the Summons was “The Joint and Several Trustees of the Property of So Ching Wan (“Bankrupt”)” and the Summons was signed by Mr Tang as “Joint and Several Trustee of the Property of the Bankrupt”.

8.  The Summons was supported by the 3^rd affirmation of Mr Tang filed on 12 October 2018 as “one of the joint and several trustees-in-bankruptcy of the property of the Bankrupt”.

9.  The Summons was amended on 22 November 2018 (the “Amended Summons”). The Amended Summons was signed by Mr Tang as “Joint and Several Trustee of the Property of the Bankrupt”.

10.  On 7 March 2019, the 5^th affirmation of Mr Tang was filed in support of the application by the Amended Summons. The said 5^th affirmation was said to be “filed on behalf of the Joint and Several Trustees of the Discharged Bankrupt”.

11.  On 6 June 2019, Deputy High Court Judge William Wong SC dismissed the Amended Summons and ordered “the Applicant” to pay the costs of the 2^nd to 4^th respondents for the Amended Summons which was varied on 2 July 2019 (the “Costs Order”). The court also dismissed the applicant’s applications against the 1^st respondent with costs.

12.  The part of the Costs Order concerning the 2^nd to 4^th respondents provides that:

“1. As for the costs of the Amended Summons including the costs of the hearing on 27^th May 2019 and the reserved costs under the Order dated 16^th November 2018, that:-

(a) The Applicant do pay the costs of the 2^nd to 4^th Respondents, on a party to party basis, with a certificate for two counsel, to be taxed if not agreed;”

13.  The applicant appealed to the Court of Appeal in CACV 306/2019 against the dismissal of the Amended Summons and the Costs Order (the “Appeal”). The Appeal was dismissed with costs on indemnity basis to be paid by Mr Tang personally and not from the estate of the Bankrupt.

14.  The Court of Appeal found that “the proceedings had all along been conducted by Mr Tang himself” (§2.6 of the judgment of the Court of Appeal dated 29 December 2020 (the “CA Judgment”)). In the CA Judgment the Court of Appeal further stated in §2.7 that: “From now on the reference to the applicant must be understood to be referring to Mr Tang himself.”

15.  On 5 December 2019, H&A commenced taxation for the 2^nd to 4^th respondents under the Costs Order and filed the Bill.

16.  Mr Tang filed his list of objections to the Bill on 11 February 2020 and amend the same on 7 July 2020 (the “Amended LOO”).

17.  The taxation hearings for the Bill took place before me on 24 August 2021, 18 July 2022 and 6 December 2022 (the “Taxation”). Mr Tang attended the hearings personally as the paying party.

18.  After the Taxation, Mr Tang issued an appointment to review taxation on 30 January 2023 (the “Review”). The review hearing took place on 31 May 2023 before me. This is my determination of the Review.

Preliminary issues

19.  In the Amended LOO, Mr Tang raised the following matters as preliminary issues:

(1) Solicitors hourly rates (“Issue 1”);

(2) Grossly excessive time charges (“Issue 2”); and

(3) Others (“Issue 3”).

20.  In Issue 3, Mr Tang complained that H&A had failed to split the costs for the hearings of 16 November 2018 and 27 May 2019 or state the costs of each of the counsel involved. He further complained that H&A did not explain why counsel fees of Ms Sakinsh Sat (“Ms Sat”) had been excluded in the Bill. Mr Tang also complained that the Bill referred to “support document” but there was no legend to explain what these references were. He also contended that H&A should produce copies of all their bills/invoices to the 2^nd to 4^th respondents together with evidence of payment of these bills/invoices to substantiate their statement of “we certify that the amount claimed in this Bill does not exceed the 2^nd, 3^rd and 4^th Respondents’ liability for costs to our firm in respect of the Amended Summons”. Mr Tang stated that he reserved the rights to file formal complaints against H&A and the handling solicitor personally for inflating the Bill.

21.  I was of the view that Issue 1 and Issue 2 were matters for taxation, not preliminary issues for taxation. The matters raised in Issue 3 were either matters for taxation or unsubstantiated bare assertions or matters irrelevant to taxation. As such, I refused to deal with those issues as preliminary issues for the Taxation and ordered the Taxation to proceed with.

Grounds of review

22.  In the review application dated 30 January 2023 (the “Review Application”), Mr Tang relies on the following grounds to review my rulings at the Taxation:

(1) hourly rates of KC and all other fee earners should be further reduced (Ground 1);

(2) work done by KC should have been performed by less senior solicitors (Ground 2);

(3) excessive time charged and/or duplication of work (Ground 3);

(4) more details of work done required (Ground 4);

(5) irrelevant work (Ground 5); and

(6) for counsel’s fees, failure to meet the statutory requirements of Order 62 Part II Section 2(1)(a) of the RHC.

Ground 1

23.  The Receiving Parties claimed in the Bill fees of 4 fee earners (ie KC, LML, NC and TN) as well as fees of trainee solicitors (“TS”) and para-legal (“PL”). The Receiving Parties claimed different hourly rates for KC, LML, TS and PL for the periods prior to 1 April 2019 (“Period 1”) and from 1 April 2019 onwards (“Period 2”). The Receiving Parties claimed the same rates for both periods in respect of NC and TN.

24.  KC was admitted in Hong Kong in 1994. He was previously admitted in New South Wales, Australia in 1993. He was also admitted in England and Wales in 1994. When Mr Tang issued the Summons in October 2018, KC had had 24 years’ local experience. By April 2019, KC had had 25 years’ local experience.

25.  The Receiving Parties claimed the hourly rates of $5,500 for KC for Period 1 and $6,000 for Period 2. At the Taxation, I allowed $4,000 per hour to KC prior to 2018 (“KC(2017)”); $5,500 per hour from 1 January 2018 to 31 March 2019 (“KC(1)”); and $5,800 per hour for Period 2 (“KC(2)”).

26.  In view of the experience of KC both locally and overseas, I am of the view that the hourly rates for different periods allowed for KC at the Taxation are fair and reasonable in all circumstances. I maintain my aforesaid rulings.

27.  Mr Tang asked for evidence to be produced to prove that the Receiving Parties were contractually bound to accept the hourly rates of the fee earners as claimed.

28.  There is a presumption that if a party has a solicitor on the record that party is liable to pay the solicitor’s costs. The party seeking to recover costs does not have to adduce evidence to support the presumption. (See R v Miller (Raymond Karl) [1983] 1 WLR 1056; [1983] 3 All ER 186; (1984) 78 Cr App R 71) It is for the paying party to adduce evidence to rebut that presumption. (See 62/App/2 of the Hong Kong Civil Procedure 2023 Vol 1)

29.  Under §17(7) of Practice Direction 14.3, a solicitor has to certify on the taxation bill that his claim does not exceed his client’s liability to his firm. That signature is no empty formality. The bill specifies the hourly rates claimed. The certificate in the bill of costs signed by the receiving solicitor is effectively the certificate of an officer of the court that the receiving party’s solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client under a contentious business agreement. The court can (and should unless there is evidence to the contrary) assume that the certificate shows that the indemnity principle has not been offended. (See Bailey v IBC Vehicles Ltd [1998] 3 All ER 570 per Henry LJ)

30.  H&A had signed a certificate in the Bill certifying that the amount claimed in the Bill did not exceed the Receiving Parties’ liability for costs to H&A (the “Certificate”). The Certificate is prima facie evidence of hourly rates of the fee earners claimed in Bill not exceeding the Receiving Parties’ liability to H&A. Mr Tang produced no evidence to rebut this evidence but made the following serious allegation in the Review Application without any supporting evidence:

“In the event that Respondents never actually agreed to pay all of these Claimed Costs, the Certification was untrue; HA and Mr. Kevin Leung [sic] would have made knowingly an untrue Certification to mislead the Court. This is a very serious matter for an officer of the Court.” (§4(c)(ii) of Part B of the Review Application)

31.  Knowing that the accusation “is a very serious matter for an officer of the Court”, Mr Tang saw fit to advance such accusation in the Review without a single piece of supporting evidence other than his own speculation.

32.  Mr Tang invited the court to re-consider the rates claimed by KC in light of the fact that the profit costs claimed by KC accounted for 81.8% of all profit costs claimed. He contended that much of the work required to be performed could have been done by a less senior solicitor.

33.  The fact that the work done by KC amounted to 81.8% of the profit costs claimed in the Bill is no ground to reduce the hourly rates of KC. There may be works which can be done by solicitors with less experience charging at lower rates. However, solicitors with less experience will require more time than a more experienced solicitor to complete the same piece of professional work. The correct question for the taxing master is whether it was proper or necessary for the fee earner concerned to undertake the work claimed. The fact that certain works can be done by a more junior fee earner is not a ground to reduce the hourly rate of a solicitor as the time allowed for a solicitor to finish a job will be determined in accordance with his experience and the hourly rate allowed for him. Of course, if a fee earner took up work for unqualified person or work which was not proper or necessary for him to do, he/she will only be allowed to charge at the rate of unqualified person or junior fee earner for that particular piece of work. This will be dealt with item by item and will not affect the hourly rate allowed for the fee earner in respect of the whole bill.

34.  Mr Tang further submitted that even if the hourly rates claimed were proven to have been contractually payable by the Receiving Parties to H&A, evidence of their actual payment should be produced.

35.  If the Receiving Parties were legally liable to pay the claimed costs to H&A, it is not a legal pre-requisite that the Receiving Parties have to actually paid these costs to H&A before they may tax the recoverable costs from the paying party. I see no merits in this contention of Mr Tang.

36.  Mr Tang submitted that for consistency reasons, rates of other fee earners (eg LML, NC and TN) should also be adjusted downwards.

37.  LML was admitted in Hong Kong in 2001. LML had 17 years’ experience when the Summons was issued in 2018. LML claimed $4,800 per hourly for Period 1 (“LML(1)”) and $5,250 per hour for Period 2 (“LML(2)”).

38.  NC was admitted in 2011. NC had 7 years’ experience when the Summons was issued. NC claimed a single rate of $4,200 per hour.

39.  TN was admitted in 2014. TN had 4 years’ experience when the Summons was issued. TN claimed a single rate of $3,520.

40.  At the Taxation, I allowed the hourly rates claimed by LML, NC and TN in full. I am of the view that the hourly rates claimed by them are appropriate for their experience. I see no grounds for changing my aforesaid rulings.

41.  The Receiving Parties claimed $1,540 per hour for both TS and PL for Period 1 and $1,800 per hour for Period 2. At the Taxation, I allowed $1,300 per hour for TS and PL for the period prior to 2018 (“TS/PL(2017)”) and $1,540 for the period from 1 January 2018 to 31 March 2019 (“TS/PL(1)”). I allowed $1,700 per hour for TS and PL for Period 2 (“TS/PL(2)”).

42.  Prior to 2018, the usual hourly rates allowed for trainee solicitors in party-and-party taxation ranged from $1,066 to $1,300. From 1 January 2018 onwards, the usual hourly rate allowed for trainee solicitors in party-and-party taxation is $1,700. Para-legal will be treated similarly. The hourly rates which I had allowed for TS and PL at the Taxation are in line with the usual rates allowed in party-and-party taxation. I see no grounds for varying my aforesaid rulings.

43.  In the premise, Mr Tang’s review relying on Ground 1 is disallowed.

Ground 2

44.  As stated above, solicitors with less experience will require more time than a more experienced solicitor to complete the same piece of professional work and the correct question is whether it was proper or necessary for the fee earner concerned to undertake the work claimed. If a fee earner took up work for unqualified person or work which was not proper or necessary for him to do, he/she will only be allowed to charge at the rate of unqualified person or junior fee earner for that particular piece of work. This will be dealt with item by item when I come to specific items in the Review.

Ground 3 to Ground 5

45.  These grounds will be considered when I come to specific items in the Review.

Ground 6

46.  Mr Tang submitted that there was no contemporaneous evidence of H&A having agreed to the fees claimed by counsel as required under Order 62 Part II Schedule 2(1)(a) of the RHC.

47.  Order 62 of the RHC does not have Part II. Mr Tang must be having in mind Order 62 First Schedule Part II paragraph 2(1)(a) of the RHC which provides that:

“Except in the case of taxation under the Legal Aid Ordinance (Cap 91) and taxations of fees payable by the Crown, no fee to counsel shall be allowed unless ―

(a) before taxation its amount has been agreed by the solicitor instructing counsel;”

48.  The same provision is reiterated in paragraph (1)(a) of Part III in the Appendix to Order 62. (See 62/App/28 of Hong Kong Civil Procedure 2023 Vol 1)

49.  At the Taxation, I allowed the brief fee of Mr Jason Lee (“Mr Lee”) of counsel in the sum of $9,000, brief fee of Mr Anson Wong SC (“Mr Wong SC”) in the sum of $360,000 and brief fee of Mr Alan Kwong (“Mr Kwong”) of counsel in the sum of $130,000.

50.  The Receiving Parties had produced the briefs sent to these counsel stating their respective agreed brief fees in the sums claimed in the Bill and the fee notes of counsel for such sums which were allowed at the Taxation.

51.  The Receiving Parties also claimed fee of Mr Lee of counsel for drafting the 3^rd affirmation of the 2^nd respondent in the sum of $61,200 for which I had allowed $45,000 at the Taxation.

52.  The Receiving Parties had produced the fee note of Mr Lee dated 10 January 2019 for the aforesaid work for the sum of $61,200. This is clear evidence of the amount claimed being agreed by the instructing solicitors before the Taxation which took place on 31 May 2023.

53.  Mr Tang’s review relying on Ground 6 is wholly without merits and is disallowed.

Review items

54.  In the Review Application, Mr Tang sought to review my rulings on 45 items in the Taxation. It transpires that out of these 45 items, 4 items (ie items 31, 33, 34 and 36.13) were in fact taxed in accordance with the parties’ agreement and another 4 items (ie items 4, 36.10, 36.12 and 56) had in fact been taxed off at the Taxation. Mr Tang withdrew his review application in respect of these items at the review hearing leaving 37 items to be dealt with at the review hearing (the “Review Items”).

55.  I shall now deal with the Review Items one by one according to the item number in the Bill.

Items 1, 2 and 3

56.  Item 1 was time claimed by KC for reviewing and considering background documents received in February 2017. KC claimed 7 hours and 30 minutes. At the Taxation, I allowed 4 hours of KC’s time.

57.  Item 2 was time claimed by KC for reviewing and considering company search to ascertain the joint and several liquidators of the 1^st respondent on 18.2.2017. KC claimed 3 minutes which I had allowed in full at the Taxation.

58.  Item 3 was time claimed by KC for reviewing and considering land searches on 20.3.2017. KC claimed 12 minutes which I had allowed in full at the Taxation.

59.  Mr Tang relied on Grounds 1, 2 and 4 to review these items.

60.  I have disallowed review under Ground 1.

61.  For Ground 2, Mr Tang contended that these works should have been performed by less senior solicitors. As KC was the handling solicitor, it was proper or necessary for him to undertake these works. I see no merits for review of these items under Ground 2.

62.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced documents considered by KC under these items for my assessment. I do not see that further details are required.

63.  Mr Tang further contended that these costs were incurred to advise or enable the respondents to comply with the 2016 Order and none should be allowed.

64.  The Receiving Parties were represented by other solicitors firms prior to instructing H&A in February 2017. In compliance with the 2016 Order, the Receiving Parties had through other solicitors firms provided various information and documents to Mr Tang from June 2016 to February 2017. However, Mr Tang was of the view that the Receiving Parties still had not complied with the 2016 Order which led the issuance of the Summons in 2018. When H&A were instructed in February 2017, Mr Tang had already been accusing the Receiving Parties of non-compliance of the 2016 Order. In §6.8 of the CA Judgment, the Court of Appeal noted that:

“After receiving the answers and documents from the respondents, the applicant wrote yet another letter dated 18 January 2017 posing 16 follow-up questions, many of which were of little or no relevance or had already been answered by the 2^nd to 4^th respondents in earlier correspondences. By a letter dated 21 March 2017, Messrs Hom & Associates, on behalf of the 2^nd and 4^th respondents, made clear to the applicant that the follow-up questions posed by the application were simply ‘unnecessary, if not frivolous vexatious and/or oppressive’.”

65.  KC had to spend time for considering and reviewing background documents to answer Mr Tang’s accusations against the Receiving Parties which eventually led to issuance of the Summons. Such costs although incurred prior to the issuing of the Summons were closely related to the subject matters of the Summons and are recoverable under the Costs Order. (See Lau Tsz Hung Ringo v First Refrigeration Engineering Limited (unrep HCMP 1166/2013, 4 July 2013) at §46)

66.  I maintain my previous rulings on these items.

Item 6

67.  In this item, KC claimed 4 hours and 55 minutes in reviewing and considering the 3^rd affirmation of Mr Tang which consisted of 23 pages with 225 pages of exhibits. I allowed 3 hours and 30 minutes of KC’s time at the Taxation.

68.  Mr Tang relied on Grounds 1 and 2 to review this item.

69.  I have disallowed review under Ground 1.

70.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the affirmation filed by Mr Tang in support of the Summons.

71.  I see no merits for review of this item under Ground 2 and maintain my previous ruling at the Taxation.

Item 7

72.  In this item, KC claimed 57 minutes in reviewing and considering the valuation report of the 1^st respondent’s properties. I allowed 30 minutes of KC’s time at the Taxation.

73.  Mr Tang relied on Grounds 1, 2, 4 and 5 to review this item.

74.  I have disallowed review under Ground 1.

75.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the valuation report on the 1^st respondent’s properties.

76.  I see no merits for review of this item under Ground 2.

77.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced documents considered by KC under this item for my assessment. I do not see that further details are required.

78.  For Ground 5, Mr Tang contended that work done under this item was irrelevant. In the Amended LOO, Mr Tang contended that the time claimed was excessive as the valuation report was only pertinent and the relevant information to note was the value and date. Mr Tang now contended in the Review that the valuation report was irrelevant and the time claimed should be taxed off.

79.  Paragraphs 26 to 29 of Mr Tang’s 3^rd affirmation in support of the Summons dealt with “Valuation of Properties” of the 1^st respondent. Mr Tang was challenging that the properties of the 1^st respondent had been sold undervalue at $9.2 million when Mr Tang alleged that they worth about $140 million. In such case, how may the valuation report on the 1^st respondent’s properties be said to be irrelevant? Mr Tang’s aforesaid contention is wholly devoid of merits.

80.  I maintain my previous ruling at the Taxation on this item.

Item 8

81.  In this item, KC claimed 1 hour and 45 minutes in reviewing and considering the affirmation of the 1^st respondent’s liquidator which consisted of 13 pages with 64 pages of exhibits. I allowed 1 hour and 30 minutes of KC’s time at the Taxation.

82.  Mr Tang relied on Grounds 1, 2, 4 and 5 to review this item.

83.  I have disallowed review under Ground 1.

84.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the affirmation filed by the 1^st respondent in response to the Summons.

85.  I see no merits for review of this item under Ground 2.

86.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced document considered by KC under this item for my assessment. I do not see that further details are required.

87.  For Ground 5, Mr Tang contended that work done under this item was irrelevant. He submitted that it was not proper and necessary for KC to read the liquidator’s affirmation in any details.

88.  Mr Tang had named the 1^st respondent as a party to the Summons and the information and documents sought by Mr Tang were related to the 1^st respondent. I do not see how the affirmation filed by the liquidator of the 1^st respondent in response to the Summons can be irrelevant and need not be read in details.

89.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 12

90.  In this item, KC claimed 21 minutes in reviewing and considering the consent summons in respect of the hearing scheduled for 16 November 2018. I allowed 15 minutes of KC’s time at the Taxation.

91.  Mr Tang relied on Grounds 1 and 2 to review this item.

92.  I have disallowed review under Ground 1.

93.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the consent summons.

94.  I see no merits for review of this item under Ground 2.

95.  I maintain my previous ruling on this item made at the Taxation.

Item 15

96.  In this item, KC claimed 15 minutes in reviewing and considering the skeleton submissions of the 1^st respondent dated 15 November 2018. I allowed this item in full at the Taxation.

97.  Mr Tang relied on Grounds 1, 2, 4 and 5 to review this item.

98.  I have disallowed review under Ground 1.

99.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the skeleton submissions filed by the 1^st respondent for the hearing of 16 November 2018.

100.  I see no merits for review of this item under Ground 2.

101.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced documents considered by KC under this item for my assessment. I do not see that further details are required.

102.  For Ground 5, Mr Tang contended that work done under this item was irrelevant. He submitted that it was not proper and necessary for KC to read the liquidator’s skeleton in any details.

103.  The 1^st respondent was a party to the Summons. I do not see how the skeleton submissions of the liquidator of the 1^st respondent can be said to be irrelevant and need not be read in details.

104.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 16

105.  In this item, LML claimed 37 minutes in attending the hearing of 16 November 2018 and claimed 59 minutes for preparing for the hearing. PL also claimed similar times for preparing and attending the aforesaid hearing. At the Taxation, I allowed the time claimed by LML for attending the hearing in full. I also allowed 30 minutes to LML for preparation but taxed off the times claimed by PL.

106.  Mr Tang relied on Grounds 1 and 2 to review this item.

107.  I have disallowed review under Ground 1.

108.  For Ground 2, as LML was a solicitor with less experience and charging at a lower rate when comparing with KC, it was proper delegation of work for LML instead of KC to attend the hearing to achieve costs savings. The time incurred by LML and allowed at the Taxation for preparing and attending the hearing was proper or necessary.

109.  However, I do not consider that it was appropriate for KC to delegate PL, being a para-legal, to attend the aforesaid hearing on his/her own with counsel which hearing being a hearing before judge.

110.  I see no merits for review of this item under Ground 2.

111.  I maintain my previous ruling on this item made at the Taxation.

Item 19

112.  In this item, KC claimed 9 hours and 36 minutes and PL claimed 7 hours and 6 minutes in reviewing and considering the 3^rd affirmation of the 2^nd respondent consisted of 23 pages with 225 pages of exhibits drafted by counsel. I allowed 5 hours to KC and 3 hours to PL at the Taxation.

113.  Mr Tang relied on Grounds 1, 2, 3 and 4 to review this item.

114.  I have disallowed review under Ground 1.

115.  For Grounds 2 and 3, as KC was the handling solicitor, it was proper or necessary for him to consider the draft affirmation of the 2^nd respondent to be filed to oppose the Summons. It was proper delegation of work to involve PL to organize the bulky exhibits to achieve costs savings. There was no duplication of work.

116.  I see no merits for review of this item under Grounds 2 and 3.

117.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced documents considered by KC under this item for my assessment. I do not see that further details are required.

118.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 20

119.  In this item, KC claimed 2 hours and PL claimed 1 hour and 30 minutes in reviewing the 5^th affirmation of Mr Tang which consisted of 21 pages with 34 pages of exhibits. I allowed KC’s time in full and taxed off PL’s time at the Taxation.

120.  Mr Tang relied on Grounds 1 and 2 to review this item.

121.  I have disallowed review under Ground 1.

122.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the affirmation filed by Mr Tang in support of the Summons.

123.  I see no merits for review of this item under Ground 2 and maintain my previous ruling at the Taxation.

Item 23

124.  In this item, KC claimed 49 minutes and PL claim 12 hours and 21 minutes in reviewing and revising the hearing bundles. PL further claimed 6 hours and 30 minutes in preparing copy set of the hearing bundles to counsel. I allowed 30 minutes to KC and 9 hours to PL at the Taxation.

125.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

126.  I have disallowed review under Ground 1.

127.  For Grounds 2, as KC was the handling solicitor, it was proper or necessary for him to supervise the preparation of the hearing bundles to consider and review the same. It was proper delegation of work to involve PL as the main handler in preparing the hearing bundles to achieve costs savings. There was no failure to delegate or duplication of work.

128.  I see no merits for review of this item under Ground 2.

129.  For Ground 4, Mr Tang contended that more details of work done were required. The receiving parties had produced the index of the hearing bundles and the parties’ correspondence on the same for my assessment. I do not see that further details are required.

130.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 26

131.  In this item, KC and PL both claimed 3 hours in reviewing and considering the skeleton submissions and authorities of Mr Tang dated 21 May 2019. I allowed 2 hours to KC and taxed off PL’s time at the Taxation.

132.  Mr Tang relied on Grounds 1 and 2 to review this item.

133.  I have disallowed review under Ground 1.

134.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the skeleton submissions and authorities filed by Mr Tang for the hearing of 27 May 2019.

135.  I see no merits for review of this item under Ground 2. I maintain my previous ruling on this item made at the Taxation.

Item 27

136.  In this item, both KC and PL claimed 1 hour and 30 minutes in reviewing and considering the skeleton submissions and authorities of the 1^st respondent for the hearing of 27 May 2019. I allowed 1 hour of KC’s time and taxed off PL’s time at the Taxation.

137.  Mr Tang relied on Grounds 1, 2, 4 and 5 to review this item.

138.  I have disallowed review under Ground 1.

139.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for him to consider the skeleton submissions filed by the 1^st respondent for the hearing of 27 May 2019.

140.  I see no merits for review of this item under Ground 2.

141.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced documents considered by KC under this item for my assessment. I do not see that further details are required.

142.  For Ground 5, Mr Tang contended that work done under this item was irrelevant. He submitted that it was not proper and necessary for KC to read the liquidator’s skeleton in any details.

143.  The 1^st respondent was a party to the Summons. I do not see how the skeleton submissions of the liquidator of the 1^st respondent can be said to be irrelevant and need not be read in details.

144.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 28

145.  In this item, both KC and PL claimed 2 hours in reviewing and considering the Receiving Parties’ skeleton submissions and authorities prepared by counsel. PL further claim 12 minutes in arranging copies for service to other parties. I allowed KC’s time in full and taxed off PL’s time at the Taxation.

146.  Mr Tang relied on Grounds 1, 2 and 3 to review this item.

147.  I have disallowed review under Ground 1.

148.  For Grounds 2 and 3, Mr Tang submitted that it was not proper and necessary for KC just to read skeleton prepared by counsel. The Receiving Parties had to demonstrate how H&A had contributed to the actual hearing.

149.  As KC was the handling solicitor, it was proper or necessary for him to review and consider the skeleton submissions and authorities prepared by counsel irrespective of whether he had any suggested amendments. It is wrong to assume that when counsel is instructed, instructing solicitors can sit there without doing anything and leaving everything to counsel. Instructing solicitors still have to review and consider documents prepared by counsel and to discuss his views (if any) with counsel. Costs incurred by the solicitor for discussions with counsel will be covered by other items for conferences and communications with counsel.

150.  The Receiving Parties’ skeleton submissions prepared by counsel consisted of 20 pages with 8 legal authorities. It was proper or necessary for KC to spend 2 hours to review and consider the same.

151.  I see no merits for review of this item under Grounds 2 and 3. I maintain my previous ruling on this item made at the Taxation.

Item 29

152.  In this item, both KC and PL claimed 2 hours in reviewing and considering Mr Tang’s supplemental skeleton submissions and authorities. I allowed KC’s time in full and taxed off PL’s time at the Taxation.

153.  Mr Tang relied on Grounds 1, 2 and 3 to review this item.

154.  I have disallowed review under Ground 1.

155.  For Grounds 2 and 3, Mr Tang submitted that it was not proper and necessary for KC just to read his supplemental skeleton which would be dealt with by counsel. The Receiving Parties had to demonstrate what additional work H&A had performed after such reading.

156.  As KC was the handling solicitor, it was proper or necessary for him to review and consider Mr Tang’s supplemental skeleton submissions and authorities. It is wrong to assume that when counsel is instructed, instructing solicitors can sit there doing nothing and leaving everything to counsel. Instructing solicitors still have to review and consider skeleton prepared by other parties and to discuss his views (if any) with counsel. Costs incurred by the solicitor for discussions with counsel will be covered by other items for conferences and communications with counsel.

157.  Mr Tang’s supplemental skeleton submissions consisted of 12 pages with 6 legal authorities. Being skeleton of the opposite side in litigation, KC had to consider it in more details. It was proper or necessary for KC to spend 2 hours to review and consider the same.

158.  I see no merits for review of this item under Grounds 2 and 3. I maintain my previous ruling on this item made at the Taxation.

Item 30

159.  In this item, both KC and PL claimed 3 hours and 24 minutes for attending court hearing on 27 May 2019. The hearing was scheduled to commence at 10 am. Court records showed that the hearing ended at 13:22 hours. Time spent by the fee earners of the Receiving Party’s solicitors for the aforesaid hearing was 3 hours and 22 minutes. As such, I allowed 3 hours and 22 minutes of KC’s time and taxed off PL’s time at the Taxation.

160.  Mr Tang relied on Grounds 1 and 2 to review this item.

161.  I have disallowed review under Ground 1.

162.  For Ground 2, Mr Tang contended that the hearing should have been attended by a less senior solicitor. As KC was the handling solicitor, it was proper or necessary for him to attend the hearing.

163.  I see no merits for review of this item under Ground 2. I maintain my previous ruling on this item made at the Taxation.

Item 32

164.  In this item, both KC and PL claimed 1 hour for reviewing the court decision dated 6 June 2019 (the “Decision”). I allowed KC’s time in full and taxed off PL’s time at the Taxation.

165.  Mr Tang relied on Grounds 1, 2 and 3 to review this item.

166.  I have disallowed review under Ground 1.

167.  For Grounds 2 and 3, Mr Tang contended that it was not proper and necessary for KC just to read the Decision. HA has to demonstrate what additional work was performed after such “reading” of the Decision.

168.  The Decision consist of 20 pages. As KC was the handling solicitor, it was proper or necessary for him to review the Decision so as to advise his client. To review a document is not simply reading a document. The reader has to consider and analyze the contents of the document. For KC to spend 1 hour in “reviewing” (not only “reading”) the Decision was proper or necessary.

169.  This item only covers the time spent by KC in reviewing the Decision. The time spent by KC in advising his client in respect of the Decision including recovering costs against the paying party under the Costs Order would have been covered by other items for conference or communications with the clients.

170.  I see no merits for review of this item under Grounds 2 and 3. I maintain my previous ruling on this item made at the Taxation.

Item 35.1

171.  In this item, KC claimed 882 minutes, NC claimed 180 minutes, TN claimed 162 minutes, TS claimed 804 minutes and PL claimed 144 minutes in attending 13 meetings with client. I allowed 600 minutes (ie 10 hours) to KC and 78 minutes to PL. I taxed off the time of NC, TN and TS at the Taxation.

172.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

173.  I have disallowed review under Ground 1.

174.  For Ground 2, as KC was the handling solicitor and PL was the para- legal assisting the fee earners in handling this case, it was proper or necessary for KC to attend meetings with client to take instructions and advise client. It was also costs efficient for KC to delegate PL to attend some meetings with client on matters suitable to be dealt with by para-legal.

175.  I see no merits for review of this item under Ground 2.

176.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced attendance records for the meetings under this item for my assessment. I do not see that further details are required.

177.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 35.2

178.  In this item, KC claimed 582 minutes, TS claimed 120 minutes and PL claimed 462 minutes in attending 7 conferences with counsel. I allowed 150 minutes each for KC(1) and KC(2) totaling 300 minutes (ie 5 hours). I taxed off the times of other fee earners at the Taxation.

179.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

180.  I have disallowed review under Ground 1.

181.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for KC to attend conferences with counsel.

182.  I see no merits for review of this item under Ground 2.

183.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced attendance records for the conferences under this item for my assessment. I do not see that further details are required.

184.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 36.1

185.  In this item, KC claimed 3,696 minutes, NC claimed 6 minutes, TS claimed 23 minutes and PL claimed 692 minutes in communicating with client consisting 143 letters (out), 117 letter (in) and 13 telephone calls. At the Taxation, I allowed 96 minutes for KC(2017), 1,104 minutes for KC(1) and 600 minutes for KC(2), totaling 1,800 minutes (ie 30 hours). I also allowed 330 minutes for PL(1) and 120 minutes for PL(2), totaling 450 minutes (ie 7.5 hours). I allowed the times of NC and TS in full.

186.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

187.  I have disallowed review under Ground 1.

188.  For Ground 2, as KC was the handling solicitor assisted by NC, TS and PL in handling this case, it was proper or necessary for KC to attend to communications with client to take instructions and advise client. It was also costs efficient for KC to delegate to other junior fee earners to attend to some communications with client on matters suitable to be dealt with by junior fee earners.

189.  I see no merits for review of this item under Ground 2.

190.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced copies of the letters and attendance records for the telephone calls under this item for my assessment. I do not see that further details are required.

191.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 36.2

192.  In this item, KC claimed 3,451 minutes, NC claimed 402 minutes, TS claimed 1,200 minutes and PL claimed 612 minutes in attending communications with the applicant of the Summons consisting 26 letters (out), 32 letters (in) and 8 telephone calls.

193.  At the Taxation, I went through each of the letters and telephone calls claimed under this item. I taxed off some communications claimed, allowed some communications by 70% of the time claimed and allowed some communications by specific minutes.

194.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

195.  I have disallowed review under Ground 1.

196.  For Ground 2, as KC was the handling solicitor assisted by other fee earners in handling this case, it was proper or necessary for KC to attend to communications with the applicant. It was also costs efficient for KC to delegate other junior fee earners to attend to some communications with the applicant on matters suitable to be dealt with by junior fee earners.

197.  I see no merits for review of this item under Ground 2.

198.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced copies of the letters and attendance records of telephone calls claimed under this item for my assessment. I do not see that further details are required.

199.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 36.3

200.  In this item, KC claimed 127 minutes and PL claimed 51 minutes in attending communication with the 1^st respondent consisting of 3 letter (out) and 12 letters (in).

201.  At the Taxation, I went through each of the letters claimed under this item. I disallowed 1 letter and allow 70% of the time claimed in respect of other letters.

202.  Mr Tang relied on Grounds 1, 2, 4 and 5 to review this item.

203.  I have disallowed review under Ground 1.

204.  For Ground 2, as KC was the handling solicitor and PL was the para- legal assisting the fee earners in handling this case, it was proper or necessary for KC to attend to communications with co-respondent. It was also costs efficient for KC to delegate PL to attend to some communications with co-respondent on matters suitable to be dealt with by para-legal.

205.  I see no merits for review of this item under Ground 2.

206.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced copies of the letters claimed under this item for my assessment. I do not see that further details are required.

207.  For Ground 5, I do not see how communications with co-respondent in respect of the Summons/Amended Summons can be said to be irrelevant.

208.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 36.4

209.  In this item, KC claimed 46 minutes and PL claimed 15 minutes in attending communications with the Official Receiver consisting of 2 letters (out) and 3 letters (in). I allowed 70% of the times claimed after considering each of the letters concerned.

210.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

211.  I have disallowed review under Ground 1.

212.  For Ground 2, as KC was the handling solicitor and PL was the para- legal assisting the fee earners in handling this case, it was proper or necessary for KC to attend to communications with the Official Receiver. It was also costs efficient for KC to delegate PL to attend to some communications with the Official Receiver on matters suitable to be dealt with by para-legal.

213.  I see no merits for review of this item under Ground 2.

214.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced copies of letters claimed under this item for my assessment. I do not see that further details are required.

215.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Items 36.6, 36.8 and 48

216.  In these items, KC claimed 30 minutes for communications with Chow Wong & Lawyers consisting of 1 letter (out) and 1 letter (in) (item 36.6) and 30 minutes for communications with CW Lawyers also consisting of 1 letter (out) and 1 letter (in) (item 36.8). In item 48, both KC and PL claimed 1 hour in reviewing 126 pages of documents received from CW Lawyers.

217.  At the Taxation, I allowed KC 20 minutes for communications with Chow Wong & Lawyers and 30 minutes for communications with CW Lawyers after considering the letters concerned. I also allowed 45 minutes for KC to review the documents received from CW Lawyers but taxed off PL’s time.

218.  Mr Tang submitted that the applicant of the Summons was not aware of the existence and involvement of Chow Wong & Lawyers and CW Lawyers.

219.  From the letters produced by the Receiving Parties at the Taxation, it could be seen that Chow Wong & Lawyers were solicitors acting for the petitioner in HCCW 299/2016 in which the 1^st respondent was being wound-up by the court. The handling solicitor of HCCW 299/2016 in Chow Wong & Lawyers subsequently left Chow Wong & Lawyers and joined CW Lawyers.

220.  Mr Tang relied on Grounds 1, 2 and 5 to review these items.

221.  I have disallowed review under Ground 1.

222.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for KC to attend to communications with solicitors acting for the petitioner in HCCW 299/2016 to make enquiries and to review documents received as the Summons/Amended Summons was related to the 1^st respondent’s affairs.

223.  I see no merits for review of these items under Ground 2.

224.  For Ground 5, Mr Tang contended that these works were irrelevant.

225.  As the disposal of the 1^st respondent’s properties in August 2016 (which was about the same time when the winding-up petition was presented against the 1^st respondent on 24 August 2016) was the core matter concerning the Summons/Amended Summons, the documents relating to the winding-up petition against the 1^st respondent were relevant. Furthermore, the learned Deputy Judge noted in §29 of the Decision that: “Mr Tang submitted that the 1^st respondent was wound up in suspicious circumstances.” In such circumstances, it was proper or necessary for the Receiving Party’s solicitors to contact lawyers acting for the petitioner in HCCW 299/2016 to obtain documents relating to the winding-up petition against the 1^st respondent and to spend time to review the documents obtained.

226.  Mr Tang’s review on these items has no merits. I maintain my previous ruling on these items made at the Taxation.

Item 36.9

227.  In this item, KC claimed 545 minutes and PL claimed 115 minutes in communicating with Mr Lee of counsel consisting of 46 letter (out), 40 letters (in) and 11 telephone calls.

228.  After considering the letters concerned and the telephone attendance records, I allowed at the Taxation 37.80 minutes for PL(2) and 70% of the time claimed by KC.

229.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

230.  I have disallowed review under Ground 1.

231.  For Ground 2, as KC was the handling solicitor and PL was the para-legal assisting the fee earners in handling this case, it was proper or necessary for KC to attend to communications with counsel instructed to deal with this case. It was also costs efficient for KC to delegate PL to attend to some communications with counsel on matters suitable to be dealt with by para-legal.

232.  I see no merits for review of this item under Ground 2.

233.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced telephone attendance records and letters claimed under this item for my assessment. I do not see that further details are required.

234.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 36.11

235.  In this item, KC claimed 1,106 minutes and PL claimed 450 minutes in communicating with Mr Kwong of counsel consisting of 29 letter (out), 13 letters (in) and 6 telephone calls.

236.  After considering the letters concerned and the telephone attendance records, I allowed at the Taxation 37.10 minutes for PL(2) and 70% of the time claimed by KC.

237.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

238.  I have disallowed review under Ground 1.

239.  For Ground 2, as KC was the handling solicitor and PL was the para-legal assisting the fee earners in handling this case, it was proper or necessary for KC to attend to communications with counsel instructed to deal with this case. It was also costs efficient for KC to delegate PL to attend to some communications with counsel on matters suitable to be dealt with by para-legal.

240.  I see no merits for review of this item under Ground 2.

241.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced telephone attendance records and letters claimed under this item for my assessment. I do not see that further details are required.

242.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Item 36.14

243.  In this item, KC claimed 659 minutes and PL claimed 522 minutes in communicating with the court consisting of 8 letter (out), 11 letters (in) and 1 telephone call.

244.  After considering the letters concerned and the telephone attendance records, I allowed PL(2) 18 minutes and 70% of the time claimed by KC in the Taxation.

245.  Mr Tang relied on Grounds 1, 2 and 4 to review this item.

246.  I have disallowed review under Ground 1.

247.  For Ground 2, as KC was the handling solicitor and PL was the para-legal assisting the fee earners in handling this case, it was proper or necessary for KC to attend to communications with the court. It was also costs efficient for KC to delegate PL to attend to some communications with the court on matters suitable to be dealt with by para-legal.

248.  I see no merits for review of this item under Ground 2.

249.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced telephone attendance records and letters claimed under this item for my assessment. I do not see that further details are required.

250.  Mr Tang’s review on this item has no merits. I maintain my previous ruling on this item made at the Taxation.

Items 39 and 42

251.  In these items, KC claimed 4 hours for conducting research. At the Taxation, I allow 3 hours of KC’s time.

252.  Mr Tang relied on Grounds 1, 2 and 4 to review these items.

253.  I have disallowed review under Ground 1.

254.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for KC to research on relevant legal issues especially on cases referred to by the court or by the Official Receiver.

255.  I see no merits for review of these items under Ground 2.

256.  For Ground 4, Mr Tang contended that more details of work done were required. The Receiving Parties had produced copies of the materials considered by KC for my assessment. I do not see that further details are required.

257.  Mr Tang’s review on these items has no merits. I maintain my previous rulings on these items made at the Taxation.

Items 57 and 58

258.  In these items, KC claimed 1 hour and 50 minutes for care and conduct. At the Taxation, I allow KC’s time in full.

259.  Mr Tang relied on Grounds 1 and 2 to review these items.

260.  I have disallowed review under Ground 1.

261.  For Ground 2, as KC was the handling solicitor, it was proper or necessary for KC to have care and conduct of this matter in supervising works of unqualified staff and junior fee earners in the daily handling of this case.

262.  Mr Tang contended that: “There is no legal basis for such “care and conduct”. Secretary and support staff costs are part of admin overhead of HA, which have been reflected in their professional hourly rates.” (p 19 of the Review Application)

263.  Item 5 and note (b) to Item 5 of Part I of First Schedule of Order 62 of the RHC provides that the Registrar may allow such fee as he thinks proper in respect of the general care and conduct of the proceedings. To say that claim for these items lacks legal basis is plainly wrong.

264.  “Care and conduct” does not cover staff costs of the receiving party’s solicitors’ firm but time spent by the supervising fee earner in supervising unqualified persons and junior fee earners in conducting the proceedings. Paragraph 62/App/23 of the Hong Kong Civil Procedure 2023 Vol 1 provides that:

“General care and conduct – In allowing the time for general care and conduct of the proceedings, the taxing master will have regard to, inter alia, the duration of the proceedings; the steps taken; and the number of unqualified persons or junior solicitors who required supervision.”

265.  I see no merits for review of these items under Ground 2.

266.  In this case, the Summons was issued on 12 October 2018. The proceedings for the Summons/Amended Summons concluded at the Court of First Instance in about July 2019 when the Costs Order was sealed. However, before issuance of the Summons, the Receiving Parties’ solicitors had since February 2017 already spent times to deal with the applicant’s requests for information and documents, the subject matters of the Summons. As such, the Receiving Parties’ solicitors had been dealing with the proceedings in respect of the Summons/Amended Summons and related matters for about 2.5 years. For the supervising fee earner to spend 1 hour and 50 minutes to supervising work of unqualified staff and other junior fee earners for such period of time was proper or necessary.

267.  Mr Tang’s review on these items has no merits. I maintain my previous rulings on these items made at the Taxation.

Items 59, 60 and 63

268.  These items were for counsel fee.

269.  Mr Tang contended that the Receiving Parties had instructed three counsel to attend the hearing of 27 May 2019. The court granted certificate for two counsel. As such, the Receiving Parties might only claim fees for the two junior counsel instead of fee for one Senior Counsel together with one senior junior.

270.  When the court grants certificate for two counsel, the receiving party may claim the fee of any of the two counsel instructed to attend the hearing if more than two counsel were instructed. It is for the taxing master to consider whether the amount of counsel fee claimed was proper or necessary.

271.  When a hearing judge in the Court of First Instance grants certificate for two counsel for an application, the judge must be of the view that the application involved certain complex issues of law which justify the involvement of more than one counsel. Usually, in such case, one of the counsel will be a Senior Counsel or a senior junior leading a junior counsel. In determining whether fee of Senior Counsel is allowed, the correct question for the taxing master is not whether the case was well within the capabilities of junior counsel but rather whether or not it was reasonable and proportionate to instruct Senior Counsel. (See R v Dudley Magistrates’ Court Ex p Power City Stores Ltd (1990) 154 JP 654; (1990) 154 JPN 490; (1990) 140 New LJ 361)

272.  In this case, the learned Deputy Judge granted certificate for two counsel to the Receiving Parties in the Costs Order. The Receiving Parties had instructed a Senior Counsel and two junior counsel. Mr Frost, the law costs draftsman for the Receiving Parties, informed the court that the brief for Ms Sat was a complimentary brief. The Receiving Parties had produced the brief sent to Ms Sat for the 27 May 2019 hearing confirming that it was a complimentary brief.

273.  As certificate for two counsel had been granted to the Receiving Parties, the Receiving Parties were entitled to claim the fee of two counsel. At the hearing of 27 May 2019 the Receiving Parties instructed Mr Wong SC, Mr Kwong and Ms Sat to attend the hearing. The Receiving Parties claimed the fees of Mr Wong SC and Mr Kwong.

274.  In Poon Shu Fan v Wong Tin Yan [2012] 5 HKLRD 512, the Court of Appeal pointed out in §31 of the judgment that after the Civil Justice Reform, in determining the amounts of fee allowed for counsel, the court should have regard to all the relevant circumstances and in particular to the following matters:

(a) the complexity of the matter and the difficulty or novelty of the questions involved;

(b) the skill, specialized knowledge and responsibility required of, and the time and labour expended by, counsel;

(c) the number and importance of the documents prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the importance of the matter to the client;

(f) where money or property is involved, its amount or value; and

(g) any other fees and allowances payable to counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.

275.  In these proceedings, there were mixed issues of facts and law raised by the Amended Summons including: whether the Amended Summons was to enforce the 2016 Order or a fresh application; if it was a fresh application under section 29 of the Ordinance whether the essential conditions for making a section 29 order had been satisfied; how the discretionary power conferred to the court under section 29 of the Ordinance should be exercised; and whether the order sought in the Amended Summons was within the ambit of section 29 of the Ordinance.

276.  The application by the Amended Summons was also found to be oppressive by the learned Deputy Judge as the applicant intended to bring contempt proceedings against the Receiving Parties and by the application required them to prove the case against themselves on oath prior to the contempt proceedings being brought.

277.  Mr Tang also made serious accusation against the 2^nd respondent in the application. The Court of Appeal noted the following stance of Mr Tang in §6.14 of the CA Judgment:

“In his 5^th affirmation the applicant continued his allegation that the 2^nd respondent had been ‘cooking the books of and producing false accounts of Assen’. He referred to the ‘artificial valuation’ and ‘manipulation of an opaque auction’. He said there is clear evidence of ‘outright lies’ of the 2^nd respondent. He claimed the valuation reports obtained by the 2^nd respondent were procured to support the assertion that the value of shares in Assen is nil to support the pre-packaged auction sale at 9.2 million. The applicant used the words “Acts of perjury and contempt of Court’ in dealing with the conduct of the 2^nd respondent.”

278.  Furthermore, in these proceedings, the Receiving Parties were required to deal with an application which the Court of Appeal had described as follows in §7.13 of the CA Judgment:

“The Judge described the original summary as being convoluted, incomprehensible, lacking in focus and more in the nature of Mr Tang’s personal comments. Although the summary has since been trimmed, my view is that the Judge’s comment on this summary is still valid.”

279.  In the circumstances of this case, I am of the view that it was proper or necessary for the Receiving Parties to instruct Senior Counsel to represent them in this matter. I am of the further view that the brief fee charged by the counsel, including the Senior Counsel, and claimed by the Receiving Parties under in these items were proper. I allowed them in full at the Taxation.

280.  Mr Tang relied on Ground 6 to review these items.

281.  I have disallowed review under Ground 6.

282.  Mr Tang’s review on these items has no merits. I maintain my previous rulings on these items made at the Taxation.

Others

283.  In the Review, Mr Tang sought to challenge the Costs Order, and even the Decision, under the disguise of disputing quantum of the costs claimed. To illustrate this, I only need to cite some of his submissions.

284.  In the Review Application, Mr Tang submitted that:

“Learned Master is invited to focus on the references to “for the attainment of justice” and reconsider exercising his discretion in light of the over-all unreasonableness of the Claimed Costs for a three-hour hearing, the conduct of the Respondents in refusing to comply with the S29 Order of Mr. Justice Chung made in 2016 (ie the 2016 Order) and the fact that these proceedings were instigated when Trustee was performing his statutory duties to enforce a Court Order under Section 29 of the Bankruptcy Ordinance against the Respondents, who have clearly failed to comply with the same. Trustee submits that the wording of O.62, r.28(2) gives Learned Master substantial scope and discretion for reviewing the taxation on a “big-picture” basis.” (original underline) (§1(c) of Part B)

“Post-taxation comments:

a. For Respondents to choose to “flight” Trustee acting in person by engaging three counsel, including Senior Counsel, the onus is on them to justify how and why that was “necessary or proper” to defend or enforce their rights. … …

b. … …

c. As things turned out for the Hearing in June 2019, those advising Respondents made a last-minutes drastic about turn in their key arguments only in their skeleton submissions. Instead of claiming that Respondents had duly complied with the S29 Order, they suddenly introduced the new argument that the Amended Summons was in fact a new S29 application, on which DHCJ Mr. William Wong SC ruled in their favour. With Trustee acting in person, such last-minute legal ambush by the legal team of Respondents is lamentable and despicable. If nothing else, such conduct of the legal team (no doubt involving Senior Counsel who argued their case) should not be condoned by the Court by disallowing their fees now claimed to be paid by Trustee as victim of such legal ambush.” (original emphasis and underline) (§3(a) of Part C)

285.  In his supplemental written submissions dated 31 May 2023 (the “Supplemental Submissions”), Mr Tang submitted that:

“8. Taxation on a party to party basis is to allow necessary and proper costs for the attainment of justice in the context of the proceedings. This is an over-riding principle. These proceedings in question had to be brought by the Trustee (ie the applicant) as an officer of the Court and discharging his duties as such in seeking to enforce Mr. Justice Chung’s S29 Order (ie the 2016 Order) against the Respondents. Respondents had been deploying all kinds of tactics to avoid full compliance with the Order (see also their conduct as discussed below). There is clear evidence that Respondents failed to fully disclose documents in their possession or under their control; the documents they disclosed were produced after the event if not fabricated.

9. At the hearing in May 2019, Senior Counsel for Respondents made a last-minute drastic about-turn in their key arguments (but only in their submissions and not in affirmations filed – see their skeleton as annexed to the Review Application dated 30 January 2023) that Trustee’s application was a new S29 application. This was unprofessional legal ambush that caught Trustee (acting in person) totally unprepared and exposed with little if not no counter arguments at short notice. In his Decision (§§8, 12 and 18), DHCJ William Wong SC accepted this argument and dismissed Trustee’s application to enforce the Chung Order.

10. Thus, Respondents’ winning the legal battle by legal ambush is professionally unethical and cannot be considered as doing “justice” to the Trustee. This is more so when Trustee was acting in person (because there were no funds in bankruptcy estate) to engage legal counsel to seek to enforce the Chung Order.

11. In this light, consequential costs awarded against the Trustee should be taxed and reflect these fundamental principles of attaining justice for the Trustee as a officer of the Court.” (Original underlining)

286.  Mr Tang submitted that although costs were awarded to the Receiving Parties with certificate for two counsel under the Costs Order, the amount of costs allowed to the Receiving Parties at the Taxation should be nil or nominal. I do not propose to go through all these submissions of Mr Tang which were put forwarded by him at the Taxation and again in the Review, it suffices for me to say that taxation hearing is not the appropriate forum for him to challenge the Decision or the Costs Order. I am of the view that such attempts amount to abuse of process.

287.  Mr Tang also included irrelevant matters in the Review Application when he submitted that: “In the event a substantial part of the Bill is to be taxed down, Applicant reserves the rights to file formal complaints against HA and Mr. Kevin Cheung personally for inflating the Bill, which must be a matter of professional misconduct, if nothing more serious, as Mr. Cheung is an officer of this Honourable Court.” (§4(f) of the Review Application)

288.  Mr Tang further submitted in §39 of the Supplemental Submissions that:

“On costs of taxation, the general rule that “unless one-sixth or more of the amount of a bill … is taxed off, the client shall pay the costs of taxation”. (62/App/69). Applying this principle, costs of taxation herein with at least 40% of the Bill (before review) taxed off should not be paid by Trustee at all.” (Original italic)

289.  Mr Tang, if not intended to mislead the court, has mixed up solicitor-and-client taxation with party-and-party taxation.

290.  By including irrelevant and/or misleading matters in the Review, Mr Tang has caused unnecessary costs being incurred, to say the least.

Costs and conclusion

291.  For the reasons stated above, Mr Tang’s review application totally fails. Costs shall follow the event.

292.  As can be seen from the above, the Review is wholly devoid of merits. In the Review Application, Mr Tang had included items which were taxed and allowed with his agreement or had been taxed off in the Taxation as review items. Such items were withdrawn only at the review hearing. Mr Tang sought to challenge the Decision and/or the Costs Order in the name of reviewing quantum of the costs claimed. He relied on speculation not supported by evidence for the Review. He raised various matters in the Summons/Amended Summons causing the Receiving Parties to incur costs to deal with those matters but submitted at the Review that those matters were irrelevant matters which the Receiving Parties should not have incurred costs to deal with. In such circumstances, I am of the view that Mr Tang shall bear the costs for this review application on indemnity basis.

293.  I make a costs order nisi that Mr Tang shall pay the Receiving Parties’ costs for this review application on indemnity basis. I shall assess such costs by summary assessment.

294.  The aforesaid costs order nisi shall become absolute after 14 days from the date of this determination unless application is received from either party within these 14 days to vary the same.

295.  To conclude, I dismiss Mr Tang’s review application. I also order Mr Tang to pay the Receiving Parties’ costs for this review application on indemnity basis on nisi basis to be assessed by summary assessment.

296.  I direct the Receiving Parties to submit their statement of costs for this review application to the court within 14 days after the aforesaid costs order nisi shall become absolute with copy to Mr Tang.

297.  I direct Mr Tang to submit his comment(s), if any, on the Receiving Parties’ aforesaid statement of costs to the court within 7 days thereafter with copy to the Receiving Parties.

298.  The court shall assess the costs payable by Mr Tang to the Receiving Parties for this review application by summary assessment by way of paper disposal.