TUNG LAI LAM v. 東網有限公司 AND ANOTHER

DCEO 8/2025

[2026] HKDC 354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 8 OF 2025

BETWEEN

--------------------

--------------------

-----------------------

DECISION

----------------------

1.  This is the First Hearing of this equal opportunities action.

2.  By an email dated 18 February 2026 (“the Email”), the Claimant informed the Court and the Respondents that he would not be attending this and any future hearings and that he would invite the Court to dismiss his claim (“請你以本人不出席案件管理將來也不會出席案件管理為由，運用你的權力把案件撤銷。”). But he expressed the wish that there be no order as to costs as he had brought the proceedings truthfully (“本人希望你不判訟費. 本人現在連買病的6萬元的標靶藥也負擔不起. 也希望你睇本人的狀書，考慮本人是否是惡意無理取鬧不真誠。決定是否頒訟費。”).

3.  In response, the Respondents informed the Court and the Claimant that they would seek costs upon dismissal of the claim.

4.  I informed the parties that I would deal with the question of costs at the hearing. As it turns out, the Claimant is absent today and the Respondents are represented by Mr Chu of solicitor.

5.  Section 15 of the District Court Equal Opportunities Rules, Cap 336G, provides that:

“(1) The claimant –

(a) may, without leave of the Court, discontinue the proceeding under this Part against the respondent, or withdraw any part of the proceeding, by --

(i) filing with the Court a notice to that effect; and

(ii) serving on the respondent a copy of the notice; …

(2) The respondent may, within 14 days after having served with a copy of that notice, or within any extended period that the Court may on application allow, apply to the Court for an order for costs.

(3) Subject to sections … 73C(3) … of the Ordinance, the Court may make an order for costs that it thinks fit.”

6.  The Claimant has expressed clearly that he does not wish to continue with his claim. That leaves the question of costs to be decided.

7.  A plaintiff discontinuing an action begun by writ without leave should generally pay costs up to the date of discontinuance (Hong Kong Civil Procedure 2026, para 62/10/2). In contrast, the general costs position for proceedings under the Disability Discrimination Ordinance, Cap 487, is that each party should bear its own costs unless the Court is persuaded that either the proceedings were brought maliciously or frivolously or there are special circumstances warranting an award of costs (s 73C(3) of the District Court Ordinance, Cap 336). The burden is on the party seeking costs to show that (a) the proceedings were brought maliciously, (b) the proceedings were brought frivolously or (c) there are special circumstances justifying a costs order. The relevant principles are summarized in ER v Li Kwok Chang, Lawrence [2018] 1 HKLRD 1104 at para 37.

8.  Mr Chu is invoking all 3 limbs. He made references to the following chronology in argument:

(a) There is a long litigation history between the Claimant and the Respondents or their predecessors, eg DCEO 5/2009, DCEO 1/2013 and DCEO 12/2024.

(b) Prior to this action, the Claimant and the Respondents were embroiled in another equal opportunities action, namely, DCEO 12/2024. There were four respondents in that action and the Respondents were the first and second respondents therein.

(c) After the Claimant had settled with the third and fourth respondents in DCEO 12/2024, he commenced this action on 17 December 2025 shortly after the Respondents had intimated that they were not willing to settle DCEO 12/2024 with no order as to costs.

9.  In the context of section 73C(3), an action is commenced maliciously “when the claimant subjectively knew that there was no substance in his or her claim and that it was bound to fail”. Mr Chu invited the Court to draw an inference from the above chronology that the Claimant had commenced this action maliciously, as a means to put pressure on the Respondents to settle DCEO 12/2024 or in retaliation.

10.  Whilst there were contemporaneous correspondences, Mr Chu said he is not relying on those correspondences as they may be privileged. In my view, there is nothing linking the commencement of this action with the refusal of the Respondents to settle DCEO 12/2024. I am not satisfied that this action was brought maliciously.

11.  Mr Chu relied on the same argument in his bid to invoke the other two limbs. He pointed to the short period of time between the commencement of this action and the Email (less than 3 months) and the timing of the Email (18 February 2026) as (a) evidence that the proceedings were brought frivolously and (b) special circumstances justifying an award of costs. He said that the Claimant was well aware of the First Hearing (which was set down when he commenced the action) and the Respondents’ application for time to file a Notice of Response (by summons dated 13 January 2026) but the Claimant only sent out the Email 7 days before the First Hearing with intervening Chinese New Year holidays and after the Respondents had expended substantial costs in preparing their Notice of Response ($96,121.50 according to their Statement of Costs). He added that the Email could not have been prompted by [2026] HKDC 290 as the Claimant did not mention the decision in his Email.

12.  In the context of s 73C(3), an action is commenced frivolously “if objectively considered, [the claim] is so manifestly misconceived that it can have no prospect of success”. Whilst the Respondents have reserved their position on any application to strike out the claim (see Notice of Response at para 2), there was no such application and Mr Chu offered no comment on the prospect of success of the claim.

13.  This action is similar to DCEO 12/2024 in that both actions concern news articles published by the Respondents or their predecessors in their website but the similarity ends there. The news article forming the subject matter of DCEO 12/2024 had been litigated before (in DCEO 5/2009). And the Court struck out DCEO 12/2024 inter alia on the grounds of res judicata and abuse of process (see [2026] HKDC 290 at paras 60 to 82). Unlike DCEO 12/2024, the news article forming the subject matter of this action (see Notice of Claim at para 18) had not been litigated before. It has not been demonstrated that the claim was misconceived. In the premises, I am not satisfied that the action was brought frivolously.

14.  As said in ER v Li Kwok Chang, Lawrence at para 37, “the court is given wide discretion under the special circumstances limb to do justice. Whilst it is impossible to list out all the circumstances in which costs may be awarded, the court would bear the rationale behind the costs arrangement in mind when determining this issue”. Earlier in the judgment, the court opined that “the special costs arrangement for equal opportunities proceedings must be understood in the context of the court exercising jurisdiction under legislations that seek to eliminate discrimination and to change the prejudicial attitudes that may exist in society. If costs are readily ordered against unsuccessful claimants, those aggrieved by discrimination and related conduct may be deterred from seeking legal redress and the policy of the legislations would be frustrated. On the other hand, the court should be able to protect respondents from unmeritorious claims. In an attempt to strike a balance, the legislature has decided that there should generally be no order as to costs but the court retains the power to make an order in two exceptional circumstances, namely, when the proceedings were brought maliciously or frivolously, and when there are special circumstances that warrant an award.”

15.  Taking an overview, I am not satisfied there are special circumstances justifying an award of costs. The Email could have been prompted by the Claimant’s poor health and by [2026] HKDC 290 handed down on 16 February 2026 when he realized that he had no basis to continue with these representative proceedings (see para 20(g) in [2026] HKDC 290).

16.  Notwithstanding Mr Chu’s able argument, there is really nothing to displace the general costs position.

17.  The Email is taken as the Claimant’s notice of discontinuance and I order each party to bear its own costs in accordance with section 73C(3).