KWAN KWAI LIN AND ANOTHER v. YEUNG ON KI

CACV 140/2022, [2025] HKCA 446

On Appeal From [2022] HKCFI 174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 140 OF 2022

(ON APPEAL FROM HCA NO 3013 OF 2015)

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D E C I S I O N

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Hon Chow JA (giving the Decision of the Court):

1.  On 10 March 2025, this Court handed down its judgment (“the CA Judgment”) (i) dismissing the 1^st Plaintiff’s appeal, and (ii) allowing the 2^nd Plaintiff’s appeal, against the judgment of Wilson Chan J dated 14 January 2022. The Court made an order that the 2^nd Plaintiff’s claims against the Defendant (limited to certain specific issues as identified at §56 of the CA Judgment) and the Defendant’s counterclaim against the Plaintiffs be remitted to another judge of the Court of First Instance for a retrial. The Court made an order nisi that the Plaintiffs were to have 70% of the costs of the appeal, to be taxed if not agreed, while the costs of the original trial were to be in the cause of the re-trial. The Court further ordered that the Plaintiffs’ own costs of the appeal should be taxed in accordance with the Legal Aid Regulations.

2.  The basic facts of this case are fully set out in the CA Judgment and will not be repeated here.

3.  On 24 March 2025, the Defendant issued a summons seeking to vary the costs order nisi made by the Court such that:

(1)  “The Plaintiffs’ costs of this appeal and the parties’ costs of the trial before the Judge be in the cause of the re-trial”; or

alternatively,

(2)  “The Plaintiffs shall have 30% of the costs of the appeal, to be taxed if not agreed. The Plaintiffs’ own costs are to be taxed in accordance with Legal Aid Regulations. The parties’ costs of the trial before the Judge be in the cause of the re-trial.”

4.  It can be seen immediately that the substance of the Defendant’s application concerns the costs of the appeal, there being no issue that the costs of the original trial should be in the cause of the re-trial, and that the Plaintiffs’ own costs ought to be taxed in accordance with the Legal Aid Regulations.

5.  In respect of the contention that the Plaintiffs’ costs of the appeal should be in the cause of the re-trial, the Defendant essentially relies on the order that was made by the Court of Appeal in Wong To Yick Wood Lock Ointment Ltd v Singapore Medicine Co [2023] 3 HKLRD 311, and submits that the same order should be made in the present case. It will be recalled that in Wong To Yick, the complaint of judicial copying was considered as a stand-alone issue and that complaint was upheld by the Court of Appeal. On the issue of costs, the Court of Appeal said the following at §35:

“I would make an order nisi that the defendants’ costs of the appeal […], and the parties’ costs below, be in the cause of the retrial. In relation to the defendants’ costs of the appeal, what is meant is that if the defendants succeed at trial, the plaintiff would have to pay their costs of the appeal. My tentative thinking behind this order […] is this: generally, a successful appellant should be awarded the costs of the appeal to be paid by the unsuccessful respondent, and this is so even though the appeal is allowed for reasons which cannot be attributed to the fault of either party, on the ground that the unsuccessful respondent could have remained neutral, or even conceded the appeal. In the present appeal, however, it should be noted that one of the matters included (albeit peripherally) in the [ground of judicial copying] was inadequacy of reasons. In view of that, it was prudent for the plaintiff to come to this Court to contend that the court should not determine this issue, and that the defendant’s arguments on it should be left to the substantive appeal (if a retrial is not ordered) or the retrial.”

6.  The above costs order nisi was subsequently confirmed by the Court of Appeal in its further judgment on the defendants’ application to vary it (see [2023] HKCA 1354).

7.  In our view, Wong To Yick is clearly distinguishable from the present case. In that case, the issue of judicial copying was dealt with as a stand-alone issue. The defendants were successful on that issue and thus successful in the appeal. Nevertheless, the Court of Appeal considered that the plaintiff was justified to come to court (and not merely to adopt a neutral position or concede the appeal) because, within the judicial copying ground, the defendants also relied on a complaint of inadequacy of reasons and the Court of Appeal took the view that it was prudent for the plaintiff to come to court to deal with that matter.

8.  In the present case, the judicial copying ground was not dealt with as a stand-alone issue. All 8 substantive grounds of appeal in the Plaintiffs’ Amended Supplementary Notice of Appeal were argued by the parties at the hearing of the present appeal before this Court. As it was, the Court accepted the judicial copying ground, and considered how the success of that ground impacted on the rest of the grounds of appeal. The Court also considered the state of the evidence before the Judge and came to the view that (i) the whole of the 1^st Plaintiff’s claims against Defendant, and (ii) the 2^nd Plaintiff’s claims against the Defendant insofar as it was based on express common intention constructive trust, were unsustainable in any event. Nevertheless, the 2^nd Plaintiff was successful in having the claims based on inferred common intention constructive trust and/or resulting trust and breach of trust remitted to the Court of First Instance for a re-trial, notwithstanding the Defendant’s resistance to those claims. We see no sufficient reason for adopting the order made by the Court of Appeal in Wong To Yick in the present case.

9.  Taking an overall view of the issues on which the Plaintiffs have succeeded and those they have failed, as well as the outcome of the appeal, we consider that the Plaintiffs should be entitled to a part of their costs of their appeal. As regards the percentage of the costs that they should be entitled to, the Defendant has not proffered any good reason why it should be 30% only. We remain of the view that giving the Plaintiffs 70% of their costs of the appeal would be fair and reasonable in the circumstances of the present case.

10.  Accordingly, the Defendant’s summons dated 24 March 2025 is dismissed, with costs to the Plaintiffs, to be summarily assessed. In the Plaintiffs’ costs statement dated 30 April 2025, the Plaintiffs claim the total sum of HK$109,367.00 (including solicitors’ costs and counsel’s fee). The Defendant’s application is a simple one, and the Plaintiffs’ legal representatives should be thoroughly familiar with the papers and the matters relevant to the application. We consider the time spent by the Plaintiffs’ solicitors and counsel’s fee to be excessive, and summarily assess the Plaintiffs’ costs in the sum of HK$60,000. The Plaintiffs’ own costs are to be taxed in accordance with Legal Aid Regulations.