PA SAM NANG AND OTHERS v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCA 1020/2015

[2024] HKCFI 2767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1020 OF 2015

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REASONS FOR DECISION

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Background

1.  This is my decision on a joinder application made by Ms Chiu Yee Mui (“Ms Chiu”). The action, commenced on 8^th May 2015, has 4 Plaintiffs, viz, Mr Pa Sam Nang (also known as “Sam Pa”), Ms Fung Yuen Kwan Veronica (“Ms Fung”) and Ms Fung’s parents. The Plaintiffs claim that the Defendant bank, which will be simply referred to as “HSBC” in the following, has wrongfully frozen their various accounts. One of the accounts frozen, a joint account held by Sam Pa and Ms Fung, had a balance of over US$86.7 million.

2.  Shortly after commencement of the action, the accounts held by Ms Fung’s parents were unblocked, but the said substantial joint account remains frozen up to the dates of this hearing.

3.  According to HSBC:

3.1.  In around April 2015, it came to their knowledge that the Government of the United States (“US”) had placed Sam Pa on a list of “Specially Designated Nationals” under US laws. By reason of its compliance obligation, the bank had to freeze all accounts in his name;

3.2.  The bank further identified Ms Fung and her parents as closely associated with Sam Pa, which led the bank to suspect that funds in their accounts might be under Sam Pa’s control and/or that they were actually Sam Pa’s property.

4.  In gist, HSBC says it was (and is) entitled to carry out “Financial Crime Risk Management Activity” in accordance with the terms and conditions of the accounts, which permitted (and continues to permit) them to freeze the accounts. As a result, the bank should not be liable for any of the Plaintiffs’ losses occasioned by the freezing of the accounts.

5.  In April 2023, eight years after commencement of the action, HSBC introduced a new line of defence to its pleading. I will come back to this amendment later.

6.  The Plaintiffs once applied for summary judgment, but HSBC was granted unconditional leave to defend by DHCJ Paul Lam SC, who commented in the written decision that “in law, HSBC is not entitled to do whatever it likes, or to freeze the Accounts for as long as it wishes”.

7.  There is no dispute that Sam Pa has since October 2015 become untraceable; there is no concrete proof whether he has just lived clandestinely, has been detained or has died. However, there was still exchange of list of documents and witness statements in this action in years 2016 and 2017, before it became practically stalled in the ensuing few years. On 5^th November 2021, Ms Fung and her parents, the 2^nd to 4^th Plaintiffs (who will be collectively called the “Fung Parties” in the following) filed a notice of intention to proceed; they further applied on 4^th November 2022 to set down the action for trial.

8.  At this stage, new solicitors had been appointed to represent the Fung Parties, and the original solicitors acting for all Plaintiffs just remained to be the solicitors for Sam Pa on record. Such separate representation of different Plaintiffs is still the situation today, and will be the subject matter of another summons to be dealt with after the present application is disposed of.

9.  Meanwhile, solicitors for Ms Chiu, the Intended Intervener in the present application, issued a letter dated 21^st November 2022 to HSBC, which was later forwarded to the Plaintiffs. In this letter, Ms Chiu said she is the lawful wife of Sam Pa, and Sam Pa is the beneficial owner of all the funds in the joint account. She described Ms Fung as Sam Pa’s secretary having no beneficial interest over the funds.

10.  According to the materials before the Court, it is fair to say both Ms Fung and Ms Chiu had engaged in a romantic and familial relationship with Sam Pa before his disappearance. They both had children with Sam Pa. They both were able to produce some sort of marriage proof issued in foreign countries; Ms Chiu’s proof apparently pre-dated Ms Fung’s.

11.  A few months afterward, HSBC amended its defence to make a new “further or alternative” plea. HSBC says in view of the competing claims to the funds in the joint account by, firstly, Ms Chiu and, secondly, another company called CIF Airport Construction Company Ltd (“CIF Airport”), the bank has reason to suspect that Sam Pa and/or Ms Fung may not be the true owner(s) of the balance in the joint account. HSBC is thus entitled to exercise its powers under the terms and conditions to suspend the operation of the joint account until such time as the bank considers appropriate.

12.  The said CIF Airport has actually issued a separate summons for intervening into this action. I understand that it has also started separate proceedings HCA 309/2023 against Ms Fung, and is now applying for that action to be heard together with this action. On the first day of the hearing of the present application, I refused to adjourn the present application by reason of CIF Airport’s intended joinder. CIF Airport’s potential interest is noted but its joinder application is not going to be determined at the same time as Ms Chiu’s. By the same reason, Ms Chiu’s late filing of an affirmation setting out substantively the basis of CIF Airport’s application was refused.

13.  The Fung Parties have not filed any Amended Reply in response to HSBC’s Amended Defence so far. According to paragraph 36 of their skeleton argument for this hearing, Fung Parties’ position is that “[f]or HSBC to properly advance its defence about suspicions about “true ownership”, the relevant fact is the existence of the alleged suspicion(s) – and how this maps onto the relevant terms and conditions purportedly entitling the bank to suspend operation of the Account. What is not required is an exhaustive determination of who is truly the “owner”. Ms Fung has not pleaded in the Reply [which was filed back in 2016] that if true ownership is demonstrated, HSBC’s suspicions are irrelevant and/or the relevant terms do not apply”.

14.  On 15^th September 2023, Ms Chiu petitioned for divorce against Sam Pa in FCMC 10614/2023. According to Ms Chiu’s affirmation, she originally hoped that Sam Pa would return home, but the lapse of 8 years has led her to lose hope, culminating in her decision to petition for divorce.

15.  On 30^th October 2023, solicitors for Ms Chiu issued another letter, this time to the Fung Parties’ solicitors directly. Again, it was said Sam Pa is the 100% beneficial owner of the funds in the joint account, and Ms Fung held the account as a nominee and/or trustee for Sam Pa. It was further said the joint account forms part of their matrimonial pot, against which ancillary relief will be sought.

16.  Ms Chiu indicated in this letter she intended to commence a TL v ML procedure in the Family Court against Ms Fung, and invited Ms Fung to apply for directions. She also indicated she wished to intervene in the present action. Ms Chiu threatened that nothing should be done in this action to prejudice the claims of Sam Pa and/or Ms Chiu, including any settlement with HSBC.

17.  On 21^st November 2023, Ms Chiu took out the present joinder summons. Order 15, rule 6(2) of the Rules of the High Court was, amongst others, cited in support of the summons. The Fung Parties oppose to the summons, HSBC stays neutral and the attendance of the solicitors for Sam Pa on record has been excused.

18.  According to information provided by the parties, the teams representing Ms Chiu and Ms Fung have attended the Family Court but there is no development warranting my attention. In paragraph 13 of Ms Chiu’s written skeleton, it was also said “service [of the FCMC proceedings] has already been completed, and a First Appointment hearing for Madam Chiu’s ancillary relief claims [has been] fixed”.

Bases of the Joinder Application and the Opposition

19.  To justify her joinder to the present action, Ms Chiu first refers to HSBC’s new plea concerning her, and says this plea is central to the question of whether HSBC has been justified in freezing those sums in the joint account as pleaded.

20.  Ms Chiu also refers to the pleaded relief that the funds in the joint account, as soon as they are unfrozen pursuant to the Court’s judgment in this action, will have to be released. If the “true owner” is found to be Sam Pa and Sam Pa only, Ms Chiu has a claim against it by way of ancillary relief. It is necessary for her to be joined to protect her interest.

21.  Further, given the potential of Ms Fung being found to be the “true owner” or partial owner of the funds in the joint account, and the potential of a settlement with HSBC, it is said Ms Chiu should be joined to prevent the release of the funds without regard of her interest.

22.  The Fung Parties say Ms Chiu’s interest is “entirely tangential”. It is said her only claim of relevance is that the monies in the joint account may be part of the matrimonial pot, such that ancillary relief may be sought and be paid out from such monies. Her interest has little to do with the issues in these proceedings. Her participation would unjustifiably delay matters and alter the entire landscape of the action. Any separate claim Ms Chiu may have against Sam Pa and/or the joint account can and should be dealt with elsewhere.

Applicable Principles and Relevant Propositions

23.  As this case is concerned about the intersection of general civil action in the High Court and matrimonial proceedings in the Family Court, a consideration of the TL v ML procedure adopted in the Family Court and its related practice is more important than a consideration of principles on joinder in general.

24.  In the written submissions of the counsel team acting for Ms Chiu, led by Mr Johnny Mok SC, four propositions have been put forward:

24.1.  As the divorce proceedings are up and running, Ms Chiu has standing to argue that Sam Pa is the beneficial owner of the funds in the joint account;

24.2.  There is no special rule that whenever there are divorce proceedings consisting of disputes between a spouse and a third party as to ownership of property, such a dispute would need to be tried in the Family Court;

24.3.  When there is the same dispute between a spouse and a third party concerning ownership of property, the Family Court and the High Court could exercise their respective case management powers to best manage its resolution; and

24.4.  As a matter of case management, it would be appropriate for the ownership issue of the funds in the joint account to be tried in these proceedings, with all relevant parties present.

25.  Having considered the written submissions of Fung Parties’ team, led by Mr Victor Dawes SC, and heard from him, it does not appear to me there is any dispute in principle against the first three propositions.

26.  First, the Fung Parties accept that divorce proceedings have been commenced, and Ms Chiu may have some interest over the funds by way of ancillary relief. The Fung Parties’ position, as I see it, is just that Ms Chiu’s interest may be protected by the divorce proceedings, and thus it is unnecessary, and hence insufficient to justify, a joinder to this action. To me, this disagreement can actually be analyzed under the rubric of the 4^th proposition outlined above, i.e. as a matter of case management, which court, the High Court or the Family Court, is more appropriate.

27.  In relation to the 2^nd and 3^rd propositions, it is actually a common ground that both courts have the requisite jurisdiction to adjudicate a dispute between “Spouse A” and a third party over a property which is the subject matter of another dispute between “Spouse B” and that third party.

28.  During the hearing, Mr Dawes informed me that the Fung Parties do not say Ms Chiu is bound by any kind of procedural exclusivity to only litigate her claim in the Family Court. I think that must be correct. From a reading of the authorities cited to me, I also derive the following:

28.1.  TL v ML [2006] 1 FLR 1263, the case itself, did not suggest that the Family Division is more superior in determining disputes of this sort. In fact, DHCJ Mostyn QC said, at paragraphs 33-34 of that judgment, that a dispute between a spouse and a third party on the beneficial ownership of a property can be adjudicated in ancillary relief proceedings. But at the same time, such adjudication “must be approached on exactly the same basis as if it were being determined in the Chancery Division”. So even the starting point of that principle is suggestive of plurality instead of exclusivity.

28.2.  The learned Judge went on to say the determination on ownership is completely different in nature from the discretionary exercise between spouses in terms of financial provision. By reason of that difference, but the need for determination in a Chancery-like manner, the learned Judge accepted a party’s complaint that pleadings should have been ordered.

28.3.  Then comes the substance of the Judge’s suggested procedure, inclusive of joinder of the third party to the matrimonial proceedings, direction for pleadings or points of claim to be filed, separate set of witness statements and hearing of that property ownership issue as a preliminary issue before financial dispute resolution (“FDR”) takes place.

28.4.  The learned Judge said, by doing things that way, divorce parties would know at an early stage whether a property in question falls within the dispositive powers of the Family Division and whether a meaningful FDR can take place. The expensive attendance of the third party for the entire duration of the matrimonial proceedings can also be avoided.

28.5.  The same spirit can actually be seen from the Hong Kong Court of Appeal case LLC v LMWA [2019] 2 HKLRD 529. At paragraph 21 thereof, Lam ACJHC (as he then was) emphasized again the need to decide issue between one spouse and the third party by reference to the general laws of property and formal pleadings. At paragraphs 22-23, His Lordship referred to the situation that, but for the breakdown of marriage and application for ancillary relief, there would not be any claim on the property – “[i]f the underlying ancillary relief claim is settled or resolved satisfactorily between the spouses, often there would be no further need or justification for proceeding with a determination of a dispute on the ownership”.

28.6.  His Lordship then further referred to the situation where proprietary interest in the property in question may be satisfied or settled by other properties in the matrimonial pot. This was the same consideration mentioned in TL v ML – ownership of a property should be dealt with before FDR so that during the FDR, there can be an exercise to account for the relevant value. In such situations, the ownership of the very property disputed may not have to be actually changed as it may be replenished by something else.

28.7.  In the present case, however, we are talking about a sum of almost US$87 million, which involves, probably, the resolution of certain banking issues, the ownership structure between Sam Pa and Ms Fung, and potentially a fourth party’s interest before it may be fully or partially recognized as the constituent of the matrimonial pot for any meaningful FDR exercise between Sam Pa and Ms Chiu to be conducted.

28.8.  I am not suggesting, and I have no means knowing, whether the sum represents a significant or major proportion of all assets under Sam Pa’s name. But to me, at least, this case is quite different from the kind of situation envisaged by DHCJ Mostyn QC or the learned Acting Chief Judge.

28.9.  In any event, these two cases and those along the same line were, in my view, meant to enable the Family Court to deal with matters efficiently and “Chancery-like”. They did not mean to give priority to the Family Division/Court over the Chancery Division or the Court of First Instance. As said in Gourisaria v Gourisaria [2011] 1 FLR 262 at paragraphs 23-28, there are cases where the dispute between the third party and the spouses should be resolved at the same time as the issues between the spouses, but there are also cases where this simply cannot be done. Ultimately, the question is one of case management, see also A v A [2007] 2 FLR 467 at paragraphs 23-24.

28.10.  In my view, if the dispute between a spouse and a third party has already had impetus in another court before any sign of divorce emerges, and its resolution is required regardless of whether there is a breakdown of marriage between the spouses and FDR may be conducted effectively, I do not see any obvious advantage for all relevant parties to be made parties in the Family Court or be bound by that court’s decision through some sort of undertaking. The matter should instead be judged on a case-by-case basis.

29.  So in short, the crux of this application is, in my view, simply which forum is more appropriate for the parties to raise different viewpoints over the ownership of the funds in the joint account after balancing all the competing considerations. Determination of this matter is a discretionary exercise. There is no presumption in favour of the Family Court. Only the 4^th proposition raised by Mr Mok represents the true contention between the parties in this application.

What Management Serves Justice Better in This Case?

30.  I have carefully considered the competing considerations raised by Leading Counsel. I also give significant weight to the position of HSBC, as the question of joinder will certainly affect the further conduct of this action, HSBC has been a party to this action since its commencement and the money in question is still with them. I take note of CIF Airport’s potential interest but put it no higher than the existence of a further potential claim, a fact already referred to in the Amended Defence and parties’ correspondence.

31.  After a balancing exercise, I come to the view that I should allow Ms Chiu’s joinder. I take into account the following:

31.1.  The text of Order 15, rule 6(2) needs not be repeated; the two limbs under it are widely worded. I am sure Ms Chiu has satisfied the threshold of interest for the purpose of joinder. In some authorities, it was said even when the proposed intervener’s interest appears doubtful, the Court would let he or she comes in first for the matter to be properly argued in trial (eg Man Whi Chung v Man Ping Nam & Anor [2003] 1 HKC 549). Ms Chiu’s interest, or potential interest, in the funds of the joint account cannot be categorized as “merely commercial”.

31.2.  I note from the evidence that Sam Pa had many female partners and children before his disappearance, but I do not think allowing Ms Chiu to join will raise any “floodgate” concern. So far, Ms Chiu is the only one who has taken the initiative to commence divorce proceedings. According to the available evidence, Ms Chiu is also, apparently, the first in time in terms of obtaining some sort of marriage certificate with Sam Pa.

31.3.  During the hearing, Mr Dawes mentioned to me there has been an assertion that Ms Chiu’s marriage might be invalid because Sam Pa had not properly divorced his previous wife when the Chiu and Pa marriage was seemingly certified in Nevada, US in 1990. However, Mr Dawes also fairly accepted that there is no evidence before me pointing to the lack of divorce with that previous wife as matters stood in 1990. To the contrary, Ms Chiu has deposed to the fact that Sam Pa had divorced that previous wife.

31.4.  More importantly in my view, HSBC has already referred to Ms Chiu’s claim qua Sam Pa’s sole interest over the funds and her status as his lawful wife in the Amended Defence. Ownership is put into issue and Ms Chiu’s interest is affected. I do not think the Fung Parties can merely tag on the lack of their reply to that new plea to say no such issue shall arise.

31.5.  Upon my enquiry with Mr Val Chow, counsel for HSBC, he said he actually prefers the ownership issue of the funds to be resolved first, as it will impact on the banking issues, i.e. the interpretation, application and effect of the terms and conditions of the accounts. As one possibility (but certainly not the only possibility), the banking issues, and the concerned damages claims, may not have to be resolved after determination of the ownership issue.

31.6.  Mr Chow emphasizes that this is only his input as counsel, rendered for the purpose of assisting the Court. This does not represent the formal position of HSBC, which remains to be neutral to the application. That said, I see the good sense in his input. Assuming the trial Court of this action holds that all the funds belonged to Sam Pa absolutely (ie Ms Fung is/was merely an account holder and has nothing to do with the beneficial interest of the funds), given Sam Pa was indeed an individual targeted by the US Government, HSBC’s act of freezing would be better justified as a compliance measure. The resolution of the ownership issue this way will certainly assist HSBC.

31.7.  In his submissions, Mr Chow effectively embraces the same statement made by DHCJ Paul Lam SC in his decision over Order 14 that HSBC cannot, in law, hold the funds forever. It has been mentioned in the course of the hearing that the sanction against Sam Pa will have to be gone one day, just it is unsure when. There is just a restraint; parties understand that there will be no application to confiscate the funds in the account by say a governmental authority.

31.8.  One day, access to the funds by a party other than HSBC itself has to be allowed. On that day, HSBC needs to know whether Ms Fung should be allowed to withdraw the money. Normally she can as an account holder; but when there are already competing claims that the money was not beneficially hers, this is not the normal situation. Although HSBC has not taken out any interpleader summons or proceedings under Order 17, it is effectively in the same position of an interpleader applicant or plaintiff. Given that position, I accept Mr Mok’s submission that it is necessary to create a litigation relationship between Ms Chiu and HSBC so that they will be bound by a decision on where the funds should go after the sanction is gone.

31.9.  When there are such rival claims to property, the discretionary exercise of ordering financial provision between spouses in the matrimonial proceedings is one more step afar. The property law exercise of finding the true owner is more complicated in this case than the usual type the Family Court sees. This is not the situation that had there been no divorce, there would be no dispute over ownership. In this case, the dispute over ownership started much earlier in time. It started before Sam Pa disappeared. When the Fung Parties resumed the action in 2021 without the support of the original solicitors acting for them and Sam Pa, an outsider could already sense that a potential conflict between Ms Fung and Sam Pa had arisen. This potential conflict, if any, would have to be adjudicated even if there had been no divorce between Sam Pa and Ms Chiu.

31.10.  Obviously, the Court of First Instance is more experienced in dealing with claims of an interpleader nature. It is also better to tag on the existing action as the platform to resolve the rival claims than to ask all the concerned parties to go to a freshly started matrimonial proceedings or compel them to make certain undertakings across different litigations. If Ms Fung is a rightful joint owner, why should she spend more time and costs at the Family Court but not resolve the matter here? Why should HSBC specifically go to the Family Court to seek reliefs similar to interpleader reliefs but not do so in an existing action in which it is the defendant?

32.  At paragraph 35 of Fung Parties’ skeleton, it was said “Sam Pa’s absolute entitlement to the funds in the joint account is not a necessary facet to be resolved in these proceedings”. At paragraph 52 thereof, it was said “Ms Chiu would have nothing to plead as against HSBC”. I disagree.

33.  As said, while HSBC’s defence may be established without proving Sam Pa’s absolute entitlement, the proof that he is indeed the absolute owner takes its defence further; its “suspicions”, so to speak, will be reinforced. Ms Chiu’s pleading will be a matter for her legal team and not a matter we can adopt to determine the joinder at this stage. In any event, she may echo HSBC and say it was right for HSBC to hold up the funds in the light of her assertion since 2021. This will impact on not just the issue and relief of ownership, but also Fung Parties’ claim for damages against HSBC.

34.  Ms Chiu’s participation in these proceedings will be more effective than undertakings by Ms Fung in the matrimonial proceedings, as an interested party, not to compromise with HSBC in this High Court action without regard of Sam Pa’s or Ms Chiu’s interest and not to dispose of any funds ordered in her favour. I agree with Mr Mok in this regard.

35.  In this discretionary exercise concerning joinder, the special feature of Sam Pa’s disappearance also affects me. As said, the interests of Sam Pa and Ms Fung appeared to be convergent at the inception of these proceedings in 2015. But things have changed with Sam Pa’s long period of absence and the separate representation between him and the Fung Parties.

36.  I am concerned whether the solicitors still acting for Sam Pa on record can effectively handle this potential conflict between Sam Pa’s interest and Ms Fung’s interest, in view of Sam Pa’s absence (and hence inability to give instructions) and their status as the previous solicitors for the Fung Parties in this case. Although I cannot say Ms Chiu may serve as a protector of Sam Pa’s interest (given they are respectively the petitioner and the respondent in the matrimonial proceedings), Ms Chiu’s case theory is that all the funds were Sam Pa’s absolutely. This theory is unlikely to be subscribed by Ms Fung or the potential further intervener CIF Airport, but may have been subscribed by Sam Pa if he is here. The suggestion that the subject account is not a normal joint account owned by a man and a woman in a relationship, but where a businessman’s substantial capital or income was stored, appears to be a serious one. This suggestion cannot be brushed aside without proper adjudication. If so, it is in the interest of the proper adjudication to have Ms Chiu joining in this action to advance that competing case theory.

37.  Mr Dawes once questioned why should HSBC be bothered to incur more costs to hear the story between Sam Pa, Ms Chiu and Ms Fung in this action. In my view, Sam Pa’s love triangle, or hexagon (in view of his many female partners as disclosed in the affirmations), will not feature in the trial of this action. Ms Chiu’s joinder is to advance the competing theory that the funds belonged to Sam Pa absolutely. HSBC only needs to participate in the issue of who the actual owner was, is or should be. Such participation can in fact be passive like any other plaintiff/applicant in interpleader proceedings/summons.

38.  Throughout the submissions, Fung Parties’ team placed much emphasis on DHCJ MC Law SC’s refusal of similar intervention attempt by Ms Chiu in separate proceedings concerning New Bright International Development Limited (HCMP 2219/2020), fought between one Ms Lo Fong Hung (who happens to be the key figure of CIF Airport) and Ms Fung. That interlocutory decision, made on the basis of a number of undertakings by Ms Fung without a publication of its reasoning, is not binding on me. Moreover, I see fundamental differences: (1) this action has not been set down for trial whereas the summons to intervene in the New Bright case was issued around one month before the milestone trial date; (2) the subject of the New Bright proceedings is about the actual ownership ratio of the shares of a private company co-owned by the aforesaid Ms Lo and Ms Fung, but not money in a bank account under Ms Fung’s name; (3) that case does not apparently involve an entity taking the position akin to a plaintiff/applicant for interpleader relief like HSBC. The timing of the joinder application, the risk of dissipation of assets and the complexity of the respective ownership issues all differ. Given those differences, I also think Ms Chiu’s intervention herein cannot be regarded as an abuse of process because of that previous refusal in separate proceedings.

39.  Finally, I will say this application to join is not late as the action has not been set down for trial. HSBC does not say it will be prejudiced by the joinder. The Fung Parties themselves have not made progress in this action for a few years from around 2017 to 2021. It does not appear the interest in having an expeditious resolution of this case outweighs Ms Chiu’s interest in the joinder and should cause the joinder to be refused.

40.  I also note that it still takes some time for this case to reach the trial stage as the determinations on whether Sam Pa’s solicitors should still appear on record, whether Sam Pa should be substituted as a defendant, whether CIF Airport should be allowed to join and whether the two sets of proceedings should be heard together are all in the pipeline. In my view, a tight case management timetable, with probably certain directions dissecting the handling of the ownership issues and the banking issues, may be adopted to alleviate Fung Parties’ concern.

Disposition

41.  I allow Ms Chiu’s application to intervene in these proceedings. There is no dispute that her costs of this application shall be borne by the Fung Parties, to be taxed if not agreed. Mr Mok seeks certificate for three counsel but I agree with Mr Dawes that only a certificate for two counsel should be granted. I should also mention, in view of my refusal to admit into consideration a late affirmation filed by Ms Chiu to set out the basis of CIF Airport’s application, the costs of such affirmation should not form part of the costs recoverable under this costs order.

42.  HSBC seeks costs despite its neutral position. Mr Dawes submits that the proper order should be HSBC’s costs in the cause. If this proposal is put into practice, there will be no order as to costs between HSBC and any other party in relation to this application when HSBC loses the final “cause”, but it will be able to recover from the Fung Parties the costs it incurred for this application when HSBC wins the final “cause”.

43.  I once had some doubt what the word “cause” should stand for as this action involves, separately, the ownership issue and the banking issue. The joinder is necessitated more by the ownership issue and HSBC may potentially be neither a winner or loser in the “cause” over that issue – as said it may be just in the position of an applicant/plaintiff in interpleader. When I raise this question, Mr Dawes agrees with me that the word “cause” may be referable to a win or a loss over the banking issue instead. Mr Chow does not reply on that. I adopt Mr Dawes’s formulation to order HSBC’s costs of this application be HSBC’s costs in the cause, with certificate for counsel. But I would leave it for parties to argue, in future if necessary, how the word “cause” in this costs order should be interpreted.

44.  Parties have consensus that, in view of the development of this case, I can just order the joinder without giving consequential directions. I so order. Parties are at liberty to apply. I thanks counsel’s assistance in this matter.