HOSSAIN MD FARUK v. KHAN, FAQERGUL formerly known as KHAN, WAJID trading as PESHAWAR AUTO DISMENTLING & GENERAL TRADING CO

CACV 156/2022, [2024] HKCA 494

On Appeal From [2022] HKDC 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2022

(ON APPEAL FROM DCEC NO 1221 OF 2017)

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DECISION ON VARIATION OF
ASSESSMENT OF COSTS

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Hon Au JA (giving the Decision on Variation of Assessment of Costs of the Court):

1.  On 26 April 2024, this court handed down its Reasons for Judgment and Assessment On Costs (“the Judgment”).

2.  At [35] ‑ [38] of the Judgment, we explained the basis, on a nisi basis, for summarily assessing the applicant’s costs of the appeal at HK$150,000 (down from the HKS469,436 as sought in the Statement of Costs) as follows:

“35. Second, the costs sought (ie, HK$469,436, which includes counsel fee of HK$150,000) as a whole is plainly excessive and unreasonable given the straightforward nature of the issues raised in the appeal, the very limited amount of papers involved, and the fact that the same firm of solicitors and counsel were already involved in the trial below. In particular and for example, given these reasons:

(1) The stated 35 hours incurred by handling solicitor and clerk (as interpreter) for ‘Attendance and correspondences with client’ under item C1 is grossly excessive and unnecessary.

(2) The stated 2 hours respectively incurred for ‘Attendance on the Respondent’ (under item C2) and for ‘Attendance on Counsel’ (under item C2) are unreasonable.

(3) The stated 4 hours incurred by handling solicitor for ‘Preparation and perusal of Documents’ (under item D1) is excessive.

(4) Counsel’s fee of HK$150,000 (under item E1) is excessive.

36. Further, the 3 hours for ‘Attending the hearing of the Appeal hearing’ (under item D3) should be reduced to 15 minutes, which is the duration of the hearing.

37. Finally, it is also well established that any costs incurred for preparing the Statement of Costs (now stated under item D4) is not allowable for summary assessment: see Practice Direction 14.3 paragraph 13.

38. In the premises, on a nisi basis, we summarily assess the applicant’s costs at HK$150,000 (which includes HK$100,000 as counsel’s fee). This nisi order shall become absolute 28 days from today unless the respondent makes an application by summons to vary it.” (emphasis added)

3.  By a letter dated 13 May 2024[1] (which was received by the court on 16 May 2024), the applicant’s solicitors drew this court’s attention to the fact that, contrary to what this court observed at [35], counsel appearing in the appeal, Mr Wong Hay Yiu, was in fact different from counsel appearing in the trial, a Mr Wong Hok Yan.  There is therefore a mistake as to the identity of the applicant’s counsel appearing in the appeal and thus the court’s observation that it was “the same firm of solicitors and counsel were already involved in the trial” is incorrect.  It further stated that, as different counsel was assigned by Legal Aid to appear for the applicant in the appeal, the applicant’s handling solicitor had to spend “substantial time for preparing and briefing the assigned counsel” for the appeal.  The applicant’s solicitors therefore requested this court to “rectify the same” and sought to see if the court is “minded to re-assess the costs of for the appeal hearing” in light of the mistake.

4.  The mistake appears to have arisen this way.  In the judgment below, it was stated at p.10 that the representation for the applicant was “Mr H Y Wong, instructed by Messrs Choy Yung & Co, for the applicant”.  At the same time, in relation to the appeal, in the “Skeleton Submissions For the Applicant (Respondent)”, it was stated to be signed off by “H Y Wong, Counsel for the Applicant”.

5.  Hence, this court had been under the (mis)impression that “H Y Wong” who appeared for the applicant in the appeal was the same “Mr H Y Wong” who appeared in the trial below.

6.  Be that as it may, given that counsel who appeared in the appeal is different from the counsel who appeared at the trial, we agreed that one of the bases for assessing down (1) counsel’s fee (stated to be HK$150,000 in the Statement of Costs) and (2) solicitor’s costs in relation to “Attendance on Counsel” as set out at [35] of the Judgment is incorrect.  In the premises, we would vary our nisi summary assessment of the applicant’s costs to HK$210,000 (including counsel’s fee of HK$150,000) instead of HK$150,000 as originally assessed.

7.  This assessment nisi shall become absolute 14 days from today unless the respondent applies to vary it by summons.