LEE YIN KEUNG JACKY v. LILY FENN & PARTNERS (A FIRM)

HCMP 63/2022

[2025] HKCFI 1101

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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Brief Background

1.  The Defendant (“D”)  is a firm of solicitors, formerly acting for the Plaintiff (“P”)  in relation to an action under FCMC 8680/2012.  P disputes the final bill issued by D (“the Final Bill”)  and has filed an Originating Summons on 14 January 2022 to refer the Final Bill to the Taxing Master for taxation.

2.  By order of DHCJ H. Au Yeung (as he then was)  dated 27 June 2022, inter alia, an amended Final Bill (“the Amended Bill”)  was referred to master for taxation and leave given to cross-examine two witnesses, Lily Fenn and Tse To Chuen (“Tse”), on 3 factual issues: (1)  whether the scope of the retainer includes work done in relation to HCA 2541/2017, HCA 2544/2017, HCA 2546/2017 (“HCAs”), the Estate of Lau Mun Tai and the Deed of Family Arrangement (“the Additional Work”); (2)  whether P had requested D not to reflect the Additional Work in any of the bills; and (3)  whether Lily Fenn requested P for a bonus payment in the sum of HKD1.35M on 27 September 2021. The learned judge also granted leave to D to exhibit the Amended Bill.

3.  The hearing of the taxation was originally scheduled to commence on 14 December 2023 but was subsequently re-fixed to 29 May 2024.  The taxation was directed not to proceed with until the question of liability had been determined. 

4.  On 19 March 2024, D took out a Summons to adduce the 2^nd Affidavit of Tse 2^nd and the 4^th Affirmation of Lily Fenn (“the Two Affirmations”).  Leave was granted on 10 April 2024 for the Two Affirmations be filed and leave given to P to file an affirmation in reply. 

5.  On 8 May 2024, P filed the 3^rd Affidavit of Lee Yin Keung Jacky (“Lee”)  (“Lee 3^rd”).

6.  Following the hearing before Master Hui (“the Master”)  which lasted 6 days, ending on 31 October 2024, the Master handed down his Ruling on Liability and a Costs Order both dated 20 November 2024. 

7.  On 3 December 2024, by a Notice of Appeal, D applied to appeal against the Ruling on Liability and the Costs Order.

8.  Today is the hearing of an application by Summons dated 18 December 2024 by D to file: (1)  the 5^th Affirmation of Lily Fenn; and (2)  the 3^rd Affirmation of Tse, as further evidence in D’s appeal (“the Application”).

Discussion and Disposition

9.  The first basis for the Application[1] is that Lee 3^rd raised for the first time that Tse had offered to work on HCAs on a pro bono basis and was not in reply to the Two Affirmations.  To the extent that D argues that the Master had ruled on matters outside the scope of the 3 preliminary issues or wrongly had regard to the evidence in Lee 3^rd, this is a matter for the appeal. 

10.  Besides, plainly D was aware of the pro bono issue (raised in Lee 3^rd).  From the 1^st Affidavit of Lee[2] and P’s Opening submissions[3], I cannot accept that the bonus issue was not “formally” raised by P.  Both issues were clearly raised by P during the hearing before the Master as questions were asked during the cross-examination of the witnesses and D’s then counsel asked Lily Fenn about this in examination in chief.  D’s counsel could have applied to adduce the Manual and Attendance Notes, now sought to be adduced, when Lily Fenn was cross-examined about this.  There is no suggestion that the Manual and the Attendance Notes, could not have been obtained with reasonably diligence for use at the hearing before the Master and thus the 1^st condition of Ladd v Marshall is not satisfied.

11.  In so far as D had applied to rely on the Attendance Note of 27 August 2021 but the application was rejected or D was persuaded by Master not to adduce it, that is a matter for appeal.

12.  The second basis for the Application is that the evidence D seeks to rely concerning P’s allegation that Lily Fenn requested a bonus were already before the Court as part of the Taxation Bundles, although not included in the Cross-Examination Bundles.  Again, plainly the 1^st condition of Ladd v Marshall is not satisfied as the Attendance Notes could have been obtained with reasonable diligence for use at the hearing before the Master.

13.  Although where there has been some procedural irregularity during the trial, the Ladd v Marshall principles may be departed from[4], I can see no procedural irregularity when both the pro bono issue and the bonus issue were raised in the proceedings before the Master, questions were asked about them and no objection was taken by D.  I cannot see how even if the Master’s determination of matters was outside the scope of the 3 preliminary issues, this constitutes a serious irregularity.  With respect, I do not accept Ms Lam’s submissions that D’s witnesses were ambushed, were not alive to the issues raised and questions asked were beyond the 3 preliminary issues.

14.  Accordingly, I will dismiss the Application.

15.  Costs should follow the event.  I order that D shall pay to P the costs of the Application to be summarily assessed by me on paper.

16.  I further direct that: (1)  P is to lodge and serve his Statement of Costs on or before 25 February 2025 and D to lodge; and (2)  D to lodge and serve any objections on or before 4 March 2025.