TO SZE ON, the Personal Representative of the Estate of TO CHEONG LAM, deceased v. YIM TIN FOOK, since deceased (YIM LOK MAN WINNE, appointed by Order dated 10 May 2024 to represent the Estate of YIM TIN FOOK, deceased) AND OTHERS

FACV No 1 of 2026

[2026] HKCFA 27

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 1 OF 2026 (CIVIL)

(ON APPEAL FROM CACV NO 5 OF 2020)

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(By Original Action)

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JUDGMENT ON COSTS

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Mr Justice Lam PJ:

1.  In our judgment of 17 April 2026, we dismissed the appeal and made an order nisi that the appellant shall pay the respondents the costs of the appeal. The appellant and the 1^st and 2^nd respondents applied to vary that order nisi.

2.  The variation sought by the appellant is not controversial. He asked that the following words be added to the costs order, “There be no order as to costs in respect of the 3^rd to 8^th respondents”. Those respondents did not take part in the appeal in this Court though notices were given to them. There was no objection to such variation. We shall vary the order nisi to limit the liability for costs accordingly.

3.  The variations sought by the 1^st and 2^nd respondents are for the following orders:

(a)     Certificate for three counsel for the costs of the 1^st and 2^nd respondents in the appeal before us;

(b)     The costs order made by the Court of Appeal on 25 August 2025 be varied to give the 1^st and 2^nd respondents the full costs of the intermediate appeal instead of 50% of such costs.

4.  As far as a certificate for three counsel is concerned, this is opposed by the appellant. We are not satisfied that there is sufficient ground to depart from the usual rule of limiting costs to that of two counsel in the taxation of costs of an appeal in this Court. Though this appeal raised questions of great general or public importance, the issues were not so difficult or complex as to warrant this Court taking the exceptional course of granting the 1^st and 2^nd respondents a certificate for three counsel.

5.  In respect of the costs in the lower courts, this Court has the power to vary the costs orders made by the courts below. In the exercise of that power, this Court may consider relevant matters that occurred since the decision was made by the Court of Appeal. We may certainly take account of the ultimate outcome in the final appeal when we exercise that power.

6.  The appellant and the 8^th defendant filed submissions in respect of the application to vary the costs order made by the Court of Appeal. The 8^th defendant opposed the application and the appellant associated himself with the 8^th defendant in such opposition.

7.  In the present case, the Court of Appeal deprived the 1^st and 2^nd respondents of 50% of the costs because they were unsuccessful on the Milmo point. Since their arguments in that respect have been vindicated on appeal, there is no good reason for depriving them of such costs. The fact that they had to argue against some authorities cannot be a good reason for such deprivation. Otherwise, a party would be discouraged from raising a point which merits serious consideration by this Court and this would in turn hamper the development of jurisprudence in Hong Kong.

8.  Our final costs order is as follows:

(1)     The appellant shall pay the costs of the 1^st and 2^nd respondents in the appeal, such costs to be taxed if not agreed;

(2)     The order for costs made by the Court of Appeal on 25 August 2025 be varied. Instead of 50% of the costs in that appeal, the appellant and the 8^th defendant shall pay the 1^st and 2^nd respondents the full costs of that appeal, such costs to be taxed if not agreed. We do not disturb paragraph 2 of that costs order which apportioned the costs liabilities between the appellant and the 8^th defendant;

(3)     The appellant and the 8^th defendant shall pay the costs of the 1^st and 2^nd respondents of the application for variation of the costs order of the Court of Appeal. Such costs are to be taxed if not agreed. Save as aforesaid, we make no order for the costs of the applications for variation.