MIMI KAR KEE WONG HUNG v. RAYMOND KIN SANG HUNG

FACV Nos. 10 & 11 of 2014

FACV No.10 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO.10 OF 2014 (CIVIL)

(ON APPEAL FROM CACV NO. 197 OF 2012)

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FACV No.11 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 11 OF 2014 (CIVIL)

(ON APPEAL FROM CACV NO. 197 OF 2012)

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JUDGMENT ON COSTS
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Chief Justice Ma (giving the judgment of the Court):

1. The Reasons for Judgment in these appeals were handed down on 18 May 2015, in which the husband (“H”) was successful both in his appeal and in the appeal of his former wife (“W”).  Although the outcome of the appeals was made known after hearing counsel, the question of costs was left open at the request of the parties as they wished to see the Court’s reasons before making submissions in this regard.  Both parties have since lodged written submissions.  This judgment should be read together with the Reasons for Judgment.

2. Orders are required in relation not only to the costs of these appeals but also the costs in the Court of Appeal.  As neither party has addressed the question of the costs at trial,[1] the order[2] made in relation to those costs remains undisturbed.

3. There is relatively little controversy between the parties in relation to the costs of the appeals to the Court of Final Appeal.[3] W accepts that she has to pay to H the costs of and occasioned by the appeals, but says that a previous order for costs made by the Appeal Committee[4] ought to remain undisturbed.    We agree.  Accordingly, the following order for costs of the appeals to this Court should be as follows, namely, that:-

(1) The costs of and occasioned by the appeals to the Court of Final Appeal be to H, to be paid by W, such costs to be taxed if not agreed.

(2) For the avoidance of doubt:-

(a) Subject to sub-para (2)(b) below, such costs will include the costs of and occasioned by the applications to the Court of Appeal and to the Appeal Committee for leave to appeal to the Court of Final Appeal;

(b) Para 11 of the order made by the Appeal Committee on the 30 September 2014 in FAMV 24 of 2014 will remain undisturbed.  Further, the costs order in sub-para (1) above will not include any costs relating to the matters referred to in para 11 of the said order dated 30 September 2014, being the attempted appeal on the Court of Appeal’s judgment on costs and the issue of the shell value of the ADHL shares.

4. The parties are, however, considerably at odds with each other regarding the costs in the Court of Appeal.  It was W who had appealed to the Court of Appeal.  As the judgment of the Court of Appeal shows, six grounds of appeal were raised by W.[5] Cheung JA stated[6] that the bulk of the arguments in the appeal was taken up by the issue of non-marital expenditure; this issue was determined in H’s favour.  The appeals to the Court of Final Appeal did not involve this issue.[7]  For present purposes, only two other grounds of appeal in the appeal to the Court of Appeal are relevant: the clawback order issue and the issue about the shell value of ADHL.[8]  Both these issues were determined in W’s favour by the Court of Appeal.  There was another matter also resolved in W’s favour, namely, an arithmetical error that had been made by the trial judge regarding the ADHL shares.[9]  The Court of Appeal ordered that W be entitled to 50% of her costs, with certificate for three counsel and in line with this, 50% of the costs of a stay application that had been heard on 27 February 2013.

5. Notwithstanding that the clawback order issue was determined against her in the appeals before us and that therefore due allowance should be made for this, W submits that she should still have costs awarded in her favour in relation to the appeal to the Court of Appeal.  W argues that she remains successful in her appeal, pointing to the shell value issue and the correction of the arithmetical error.  She accepts that allowance should be made in relation to those issues on which she has ultimately failed. Accordingly, W asks for 35% of the costs of the appeal to the Court of Appeal, with certificate for three counsel and 35% of the costs of the stay application.

6. For his part, H submits that following the successful appeals to this Court, he has effectively won on all of the main issues before the Court of Appeal.  The issue regarding the shell value of the ADHL shares, according to the written submissions provided on behalf of H (and not contradicted), took up less than half an hour in a three day hearing (about 5% of the appeal).  The arithmetical correction took up very little time and was, as H now accepts (and presumably accepted in the Court of Appeal), “plainly an inadvertent omission” by the trial judge.  Accordingly, H submits that he should have the costs of the appeal awarded in his favour discounted by only 5% to reflect W’s residual limited success in the Court of Appeal.  He also asks that 95% of the costs of the February 2013 stay application be in his favour.

7. The discretion as to costs in this Court, as in any other Court, is to be exercised in a principled way with a view to reality and justice.  We are of the view that H should have 90% of the costs of and occasioned by the appeals to the Court of Appeal, with certificate for three counsel and 90% of the costs of the stay application, such costs to be taxed if not agreed:-

(1) While it could be said on one view that W remains successful in her appeal to the Court of Appeal, the reality is that in relation to what were clearly the main issues before the Court of Appeal, H has ultimately succeeded.  The matters on which W succeeded took up very little time compared with the other issues in which she has failed.  This view accords with the justice of the situation: overall, H was successful in the appeal.

(2) However, the above analysis notwithstanding, it is a fact to be borne in mind that W did have to go to the Court of Appeal in order to obtain the orders she did on the shell value and the arithmetical error issues.  Her success on these issues benefitted her in the amount of some HK$8 million.  In the context of combined matrimonial assets of over HK$1 billion, this amount may not appear significant, but it is nevertheless to be taken into account.

8. For the above reasons, we make the orders for costs set out in paras 3 and 7 above.  The costs of this application for costs should also be to H, such costs to be taxed if not agreed.