HON KWOK WAI, the administrator of the Estate of LAI SHU KUEN, deceased v. HON MAN WAI ANGELA, the administrator of the Estate of LAI SHU KUEN, deceased

HCMP 1916/2022

[2025] HKCFI 5402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1916 OF 2022

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DECISION

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1.  For background of the matter, I refer to my Decision on Costs handed down on 14 September 2023[1] (the “Costs Decision”). Unless otherwise stated, I also use the same terms and abbreviations as used therein.

2.  As I have recorded in the Costs Decision, despite agreement on the substantive disputes, parties remained in dispute on the question of costs (the “Costs Dispute”).  Pursuant to directions handed down for paper disposal of the Costs Dispute, parties, represented by counsel, lodged written submissions on the matter.  Having read those submissions, and for the reasons set out in the Costs Decision, I made the order as set out in §38 of the same (the “Costs Order”), that:

(a)  D do personally pay to P 70% of his costs of and occasioned by the Originating Summons (including the 26 June 2023 Hearing and these written submissions on costs) on an indemnity basis;

(b)  The Estate do indemnify P’s costs if not recovered from D;

(c)  Save as ordered by the Court, D’s costs in this action shall not be indemnified or recoverable from the Estate;

(d)  D’s own costs to be taxed in accordance with Legal Aid Regulations.

3.  By summons of 19 June 2025, P seeks “Clarification as to the [Costs Order]” (the “Clarification Summons”).

4.  Ms Karen Lo (who was not the counsel who filed written submissions for P on the Costs Dispute) appeared for P.  Mr Tony Ko continued to appear for D.

5.  D is and has been legally aided.

6.  I have been told that P has, on the strength of the Costs Order and non-payment of the full costs concerned, commenced bankruptcy proceedings against D.  Those proceedings have been adjourned pending this Court’s consideration of the Clarification Summons.  D has also expressed through Mr Ko her desire to have the Clarification Summons dealt with expeditiously.  I appreciate parties’ desire in this regard.

7.  P’s stance is adequately summarised by Ms Lo in her written submissions under the heading “Final Remarks”, as follows:

53.  In summary, P respectfully reiterates that the present application seeks clarification, not variation of the Costs Order.  Such clarification is confined to understanding Your Lordship’s intended meaning of the word “personally” in §2 of that order.

54.  The Court’s jurisdiction to clarify a sealed order is well-established.

55.  On P’s case, the Costs Order already reflected an intention to impose personal liability on D for 70% of P’s costs, consistent with Your Lordship’s findings on D’s improper conduct and with the statutory framework under s. 17(3) of LAO.  Clarifying such intention would not alter the substance of the Costs Order; nor would it result in any prejudice to D, which had once accepted her obligation to pay and not appealed the Order.

56.  Ultimately, what matters is the Court’s intention at the time the Costs Order was made.  P respectfully invites Your Lordship to clarify that intention so that the plain effect of the Order may be properly understood and given effect to, particularly in light of the fact that the HCB Proceedings have been adjourned pending the determination of Your Lordship’s clarification.

8.  D’s stance is summarised by Mr Ko at §3 of his written submissions, that:

…the Costs Order could not have had the effect of overriding s.16C [of the] Legal Aid Ordinance (Cap. 91) (“LAO”) …, and the Court simply could not have intended to exercise its power under s.17 of the LAO.

9.  Ms Lo accepts that the overall scheme under section 16C of the LAO is that the aided person’s (and the Director of Legal Aid’s) liability for costs should not exceed the aided person’s contribution, save where the non-aided person is, broadly speaking, a successful defendant or respondent.

10.  P is the plaintiff.

11.  Ms Lo relies on section 17(3) of the LAO, which provides that:

Where it appears to a court or judge that an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them, the court or judge may order the aided person to pay the costs of the Director and of the counsel or solicitor who acted for him or the costs of the other party, or the costs of the Director and such counsel and solicitor and such party.

12.  The courts indeed have the power to clarify an order even after sealing without infringing the functus officio doctrine[2] – see Man Ping Nam v Man Fong Hang (No. 2) (2007) 10 HKCFAR 140 §§10 and 11.

13.  I make the following clarifications:

(a)  As recorded in the Costs Decision and repeated above, written submissions were lodged for paper disposal of the Costs Dispute.  P and D each filed two sets;

(b)  In the submissions filed on behalf of P, this Court was invited to make the order which I ultimately made at §38 of the Costs Order.  In particular, this Court was specifically invited to make the order that “[D] do personally pay to [P] 70% … of his costs of and occasioned by the OS …”[3];

(c)  Whilst this Court was invited to order P to personally pay the costs concerned, counsel did not on P’s behalf address the Legal Aid regime.  In particular, section 17 of the LAO was not referred to, and this Court was not invited to exercise its power under that section;

(d)  Nor was the Legal Aid regime in general or section 17 of the LAO specifically referred to or addressed in the submissions filed in opposition on D’s behalf;

(e)  In the end, I acceded to P’s application on the basis as put forward on P’s behalf, and as explained in the Costs Decision;

(f)  I was not referred to the Legal Aid regime.  I was not invited to exercise my power under section 17 of the LAO.  This Court did not itself raise the Legal Aid regime or section 17 of the LAO which parties did not raise.  The Costs Order was made for the reasons set out in the Costs Decision;

(g)  In making the Costs Order, this Court did not invoke its power under section 17 of the LAO, and this Court had received no submission on the same.

14.  Having heard counsel, I ordered that there be no order as to costs in respect of the Clarification Summons.