LEE YIN KEUNG JACKY v. LILY FENN & PARTNERS (a firm)

HCMP 63/2022

[2026] HKCFI 1303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 63 OF 2022

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DECISION

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Introduction and Background

1.  By Summons dated 16 September 2025 (“Appeal Summons”), D seeks:

(1)     A direction as to whether the decision and order of this Court dated 3 September 2025 (see [2025] HKCFI 3858 (“the Decision”)) is a decision or order determining in a summary way the substantive rights of either of the parties to the present proceedings as per O.59, r.21(1)(a) and (3) of the Rules of the High Court, Cap.4A (“RHC”); and

(2)     If the Decision is not one determining in a summary way the substantive rights of either of the parties, leave be granted to appeal against the Decision to the Court of Appeal on the grounds set out in the draft Notice of Appeal annexed thereto for the reason that: (a) the intended appeal has a reasonable prospect of success; and (b) further or alternatively, there are some other reasons in the interest of justice why the appeal should be heard.

2.  Parties agreed that the Appeal Summons be disposed of on paper following the agreed timetable for lodging of submissions.  On 17 October 2025 and 11 November 2025, orders by way of Consent Summonses were made to that effect.

3.  For ease of reference and consistency, save as otherwise herein indicated, I shall adopt the abbreviations and definitions in the Decision.  This decision should be read together with the Decision in full. 

4.  At the hearing before me on 26 June 2025 (“the Hearing”): (1) by the NOA, D sought to appeal against the Ruling and Order of the Master on 20 November 2024; and (b) by the Amendment Summons, seeking to amend the NOA, D raised the jurisdiction point as to whether the Master had the jurisdiction to determine the contractual liability of the party chargeable with the solicitor-client bill.  In D’s Skeleton Submissions dated 23 June 2025 lodged for the Hearing, at the outset, this Court was invited to consider the jurisdiction point raised by the Amendment Summons before going into the substantive merits of the appeal against the Master and only if this Court determined the jurisdiction point against D was it necessary to consider the merits of the appeal as set out in NOA which challenged Rulings 3 to 6 of the Master.

5.  In the Decision, I dismissed the NOA (without any substantive determination) because, based on the jurisdiction point I had raised, I took the view that if D was aggrieved by any decision of the Master, as the taxing master in these taxation proceedings, the proper channel for redress after the taxation was completed was to firstly, seek a review by the same taxing master and then a review by a judge (under O.62, rr.33-35 of RHC) and not by appealing to a judge (under O.58 of RHC) as D did.  As I held that it was misconceived for D to issue the NOA, it followed that the Amendment Summons should also be dismissed: see the Decision, §§26-28. However, I did also consider the Amendment Summons on the merits and held that it was unmeritorious and should also be independently dismissed: see the Decision, §§25-26.  

Applicable Principles

6.  The test for granting leave to appeal against an interlocutory order of the Court of First Instance is trite and not disputed.  Under s.14AA(4) of the High Court Ordinance, Cap.4 (“HCO”), leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.  See e.g. Xu Hongbiao v Oasis Investment Group Limited & Ors [2024] HKCA 854 at §41.

7.  For appeals from a “judgment or order determining in a summary way the substantive rights of a party to an action”, O.59, r.21(1)(a) of RHC provides that no leave to appeal to the Court of Appeal is required.  Parties do not dispute the test is the “application test”, namely that the determination of the application must finally dispose of the action but if it does not finally dispose of the action but only an issue in the action, it is necessary to consider the purpose and substance of the application, the issue determined by the court and the effect of a determination of this issue on the rights of the parties, the further conduct of the proceeding and the final disposal of the whole action.  See Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Another [2003] 3 HKLRD 62 at §31 per Chan PJ.

8.  In Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] 2 HKLRD 220 at §11, Lam VP emphasized that the issue in question has to be an issue on the merits as opposed to the procedural steps for bringing or preparing a case before it is presented to the court for final determination on the merits.

9.  Furthermore, in Securities and Futures Commission v Lu Ruifeng [2022] 1 HKLRD 1349 at §33, G Lam JA held that whether an order falls within O.29, r.21(1)(a), one has to examine what the order actually determines, rather than its collateral practical effect.  Examples were given of an order setting aside an extension of the validity of a writ of summons which has the collateral effect that the action fails and a refusal to extend time for payment of security which has the effect the proceedings become permanently stayed.  It was held that in these cases there is no decision on any issue of substantive merit between the parties even though the effect may well spell the end of the proceedings in question.

Discussion

Re: Whether the Decision is a decision or order determining in a summary way the substantive rights of either of the parties in an action

10.  D submitted that in the present case both P and D submitted that the Court has no jurisdiction to embark on the consideration of the merits of the appeal against the Master’s Ruling and Order.  Thus the only issue before this court was what should be the basis for the Court to hold it had no jurisdiction to consider the merits and therefore this issue must be a “crucial issue” that “goes to the root of the case” or being a “dominant feature of the case” (see Shell Hong Kong Ltd at §31).

11.  However, D accepted that in the present case, there was no determination on the substantive merits of the NOA.  I do not agree that the crucial issue that goes to the root of the case or dominant feature of the case was the jurisdictional issue.  Rather, it was whether the Master’s Ruling and Order ought to be set aside.  Yet this was not determined by the Decision.  By the Decision, in holding that the wrong “appeal” procedure was invoked, no substantive rights of the parties on the merits in these proceedings to tax the Amended Bill had been determined.  The effect of the Decision is that if D is aggrieved by the Master’s Ruling and Order, it should pursue a review under O.62, rr.33-35 upon completion of the taxation.  D is still at liberty to challenge the Master’s Ruling and Order through that review mechanism then.  I therefore am of the clear view that the Decision does not fall within O.59, r.21(1)(a) of RHC and leave to appeal is required.

Re: whether the intended appeal has a reasonable prospect of success

12.  D seeks leave to appeal against both the dismissal of the Amendment Summons and NOA.

13.  In respect of the dismissal of the Amendment Summons for the lack of merits on D’s jurisdiction point, essentially, in D’s Written Submissions (see also Grounds 1 to 6 of the draft Notice of Appeal) it was submitted that I erred in law in holding that the source of the Judge’s jurisdiction to make the 2023 Directions was O.32, r.11(1) read together with O.106, r.2(2) of RHC: see Decision, §25(4)&(5). In particular, it was submitted where O.106 provides for any application to the court under Part VI of LPO may be exercised by a judge in chambers and be disposed of in chambers, it is limited to the application that the bill shall be taxed (under s.67(2) of LPO) and given that that application had been disposed of in chambers by the June 2022 Order, the taxation itself or actual determination of the scope of the retainer or proprietary of the conduct of D is not within s.67 of LPO.  As it is not within s.67 of LPO, it is submitted that the provisions of O.28 of RHC is not subject to any special provisions relating to originating summonses of any particular class made by RHC or under any written law under O.28, r.1 of RHC such that O.28, r.3A applies, requiring the hearing of the OS should take place in open court.

14.  With greatest respect, this argument, in effect, to divorce the making of an order to tax the bill and the taxation exercise itself is wholly misconceived and unarguable.  To start off with, it is inconsistent with the case of Mark Richard Charlton Sutherland v CRB (a firm) [2023] 1 HKLRD 1 which D had so heavily relied upon.  At §60, Au Yeung J clearly explained that an application for taxation involves: (1) making an order to tax; and (2) the taxation itself after an order to tax is made.  

15.  Section 67(3) of LPO expressly provides every order for the taxation of a bill shall require the taxing officer to tax not only the bill but also the costs of taxation and to certify what is due to or by the solicitor in respect of the bill and in respect of the costs of the taxation.  It is clear that the order of taxation and the taxation exercise itself ending up in certification of what is due in respect of the bill and cost of the taxation must be regarded as falling within s.67 for which an application to the court under that provision may be disposed of in chambers and the jurisdiction may be exercised by a judge in chambers under O.106, r.2 of RHC.

16.  As for the submissions that O.28, r.3A of RHC is applicable, I had dealt with this in the Decision at §25(7).

17.  I am not satisfied that the arguments raised by D enjoy reasonable prospects of success.

18.  In respect of the dismissal of NOA on the basis that the proper mechanism is for a review as provided for in O.62, rr.33-35 of RHC, and for this reason the Amendment Summons falls to be dismissed, in D’s Written Submissions (see also Grounds 7 to 13 of the draft Notice of Appeal) in gist, it was submitted that I erred on the test to be adopted for identifying “taxation proceedings” in the Decision at §27(8) but it should be that of the exercise of a discretion in the allowance or disallowance in whole or in part of any item by a taxing master(O.62, r.33(1) of RHC).  I had explained in the Decision at §27(8) that the Master’s determination of the 3 issues to resolve the scope of the retainer would affect the quantification of costs in the taxation exercise.  When the taxation proper is completed there would either be allowance or disallowance in whole or in part of any item claimed and an amount allowed in respect of any item by the Master as provided for in O.67, r.33(1) of RHC.

19.  D however submitted that where the determination of the 3 issues does not involve the exercise of a discretion in the allowance or disallowance in whole or in part of any item by a taxing master, O.62, r.33(1) of RHC is inapplicable.  Even if this was the case, in allowing or disallowing an item on a bill, or the amount allowed, it is not understood why no exercise of discretion is involved.  O.62, r.29(1) of RHC provides that on the taxation of a solicitor’s bill to his own client, all costs should be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.   Costs which in the circumstances of the case are of an unusual nature may also be presumed to be unreasonably incurred under O.62, r.29(3) of RHC.  Hence, even if items are found to be within the scope of retainer, the Master would have to determine whether the amount claimed is unreasonable or costs are unreasonably incurred and in doing so must be exercising his discretion.  Again, I cannot see how D’s arguments enjoy any reasonable prospect of success.

20.  In all, I am of the view that the intended appeal against both the dismissal of the Amendment Summons and NOA has no reasonable prospects of success.

Re: whether there is some other reason in the interest of justice that an appeal should be heard

21.  In D’s Written Submissions the following were submitted as reasons why it is in the interest of justice that the proposed appeal should be heard:

(1)     There is a general or public importance to identify what type of decision of a taxing master is required to resort to the review mechanism as provided for in O.62, rr.33-35;

(2)     The proposed appeal raises a fundamental question of the jurisdiction of the taxing master and this court; and

(3)     The proposed appeal affects the professional reputation of a very senior solicitor.

22.  Whilst I am not persuaded by the third reason, and although in my view it is clear from the provisions and authorities that I have reviewed in the Decision at §§25 and 27 that in the present case, I was of the view that the Judge had jurisdiction to direct the scope of retainer and taxation to be determined by the Master and that the review procedure under O.62, rr.33-35 of RHC is applicable, I can see that a decision of the Court of Appeal would be of general importance and to public advantage to the extent it would put the matter beyond doubt.

Disposition and Orders

23.  Accordingly, I would grant leave to D to appeal to the Court of Appeal.  I make a costs order nisi that 50% of the costs of the Appeal Summons should be paid by D to P to be taxed if not agreed and 50% of the costs of the Appeal Summons be in the cause of the appeal, with certificate for two counsel (broadly reflecting D’s success in the two matters requiring my determination under the Appeal Summons).  Any application to vary the costs order nisi should be made within 14 days from the handing down of this Decision otherwise it shall become absolute.