SEE TO KEUNG AND ANOTHER v. SUNNY WAY LTD

cacv 25/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 25 of 2006

(on appeal from HCMP NO. 3292 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  As Yip Lai-fong v Sin Tung Hing & Others [2004] 3 HKLR 230 has demonstrated there is no right order.  What the court has to do in circumstances such as this is to come to what we consider is a fair order.  There are many ways of looking at it but it seems to us that, having heard the arguments this morning, the best thing is to leave the order as we left it.  It means that the Plaintiff is deprived of his costs below.  One way of looking at it is that the Plaintiff only gets one set of costs, which is right in the circumstances.

2.  We have taken into account all the factors, including the fact that the appeal was pursued even after the court raised the new point, and also that the notice of appeal was amended on the day of the hearing but, of course, once the new translation came in, that amendment followed.

3.  In all the circumstances, I feel that there is very little more to be said other than that we have tried to do what we think is the fairest thing in the circumstances and that is to leave the order as it is.

Hon Yuen JA:

4.  I agree.

Hon Stone J:

5.  I agree with what has fallen from the Vice-President.  In the circumstances, given what I originally said at paragraph 29 of the original judgment, I think I perhaps should add one or two words.  In expressing the provisional view I did that there should be a global ‘no order’ as to costs, I looked at it very much through the eyes of a commercial judge. 

6.  Having heard the argument this morning, it represents a tricky little problem, but eventually I have been convinced by the argument that whatever happened, and whatever translation was used, the Plaintiff had to come to court, there had to be one visit to court to obtain appropriate relief, and therefore there should be at least one set of costs to the Plaintiff.  That is why I have agreed with my colleagues, and take the view that the order proposed by my Lord, the Vice-President, is probably the least unfair in the circumstances.

(Submissions by counsel)

Hon Rogers VP:

7.  As Madam Justice Yuen has correctly reminded me, the costs form part of the appeal because in the old days, the court would give its judgment in open court and the parties would have to come and listen to it and then argue the costs straight away.  The costs today is all part of the costs of the appeal.