THE HONG KONG BUDDIST ASSOCIATION, the Interim Administrator and Manager of MAN WA TONG (also known as MAN WAH TONG (also known as CHUK LAM SIM YUEN), a Religious Tong v. JAN FUNG AND OTHERS

HCA 595/2019

[2026] HKCFI 3210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 595 OF 2019

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DECISION
(Variation of Costs Order Nisi)

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A. Introduction

1.  In this decision, and for easy reference and save as indicated otherwise herein, this Court continues to adopt the abbreviations / nomenclature in the judgment handed down by the Court on 30 May 2023 (“Judgment”). A sealed copy of the order for the 595 Action was filed on 3 July 2023 (“595 Sealed Order”).

2.  Briefly, and as reflected in the 595 Sealed Order, it was ordered that:

 (1) Re the Tong’s claims in its statement of claim in the 595 Action,

(i) Claim (1), ie the Tong’s claims against Pong for possession, be dismissed;

(ii) For Claim (2)(a) and Claim (3), any damages suffered by the Tong as a result of Jan’s failure to deliver up the Tong Chops and financial documents on or before the date stated are to be assessed by a Master;

(iii) The Tong’s claims against Jan for account, ie Claim (2)(b) and for enquiry, ie Claim(2)(c) be dismissed;

(iv) Re Claim (4), whether Articles 4 and 5 of the Abridged Regulations need to be amended to be further considered at a direction hearing.

 (2) Re JP’s counterclaims:

(i) A better administration order (“BAO”) for the Tong be granted;

(ii) It be declared that Wong Mee Chun Eallen was/is not qualified to be a member of the Tong and her removal be effected forthwith;

(iii) It be declared that AuYeung Shun Mei and Poon Kit Fong were/are not qualified to be manageresses of the Tong and be removed upon interim manageresses be appointed;

(iv) It be declared that Pong was entitled to reside in only the two story toilet/store room block attached to the Yung Chau Memorial Hall rent free for life;

(v) Pong was to remove all his belongs out of and vacate the Yung Chau Memorial Hall and to hand over one set of keys thereof to the Tong within one month.

 (3) Re: costs

(i) Regarding Claim (1) and paragraph 26F of JP’s Counterclaim, the Tong to pay Pong’s costs to be taxed if not agreed on party and party;

(ii) There be no order as to costs as between the Tong and Jan in relation to Claim (2)(a), Claim(2)(b), Claim(2)(c) and Claim (3) of the Tong’s claims;

(iii) The Tong to pay SJ’s costs, to be taxed if not agreed on party and party basis;

(iv) Regarding paragraphs 26D and 26E of JP’s counterclaim, the Tong to pay JP’s costs to be taxed if not agreed on party and party basis;

(v) The costs of the trial be apportioned 50% for the 496 Action and 50% for the 595 Action;

(vi) As for the 595 Action, costs of the Tong’s claims and JP’s counterclaim to be apportioned roughly 50/50 (“Apportionment”).

3.  The above costs orders were orders nisi, which were to be made final after 21 days (“Order Nisi”).

4.  On 20 June 2023, JP issued a summons for variation of the Order Nisi (“Variation Summons”), seeking the following orders:

(i) As between Tong and Jan, the Tong is to pay Jan’s costs in respect of Tong’s Claims (2)(b) and (2)(c) in the 595 Action (“Paragraph 1”);

(ii) The Apportionment be varied to the effect that as for the 595 Action, the apportionment of costs of the Tong’s claim and JP’s counterclaim be roughly 20/80 (“Paragraph 2”);

(iii) Costs of and incidental to the Variation Summons be to JP to be taxed if not agreed.

5.  The Variation Summons was eventually re-fixed for hearing on 15 November 2023, together with the hearing for directions regarding the BAO.

6.  In the meantime, the Tong decided to appeal against the Judgment. In light of the Tong’s pending appeal, this Court ordered that the Variation Summons be adjourned to be dealt with until after the determination of the Tong’s appeal.

7.  Eventually, the Tong’s appeal against the Judgment was dismissed by consent on 19 September 2025.

8.  Thereafter, JP through their solicitors applied to restore the Variation Summons, and on 31 March 2026, this Court gave directions for the lodging of written submissions and for the Variation Summons to be disposed of on papers.

B.  JP’s grounds for the Variation Summons

9.  In JP’s written submissions of 10 November 2023, it was submitted mainly that for the Apportionment, the proper apportionment of the Tong’s claim and JP’s counterclaim should be 20/80 because:

(i) The focus of the trial was whether the BAO was necessary, and that more than half of the Judgment, ie over 170 paragraphs (paras 126-299) were dedicated to this topic, and that only about 50 paragraphs (paras 300-352) were spent on JP’s Counterclaim;

(ii) A lot of issues had been sensibly conceded by JP;

(iii) The majority of the 50 paragraphs about the Counterclaim was really only necessary because of the insistence on the part of the Tong on various wrongful assertions which had been duly rejected by the Court.

10.  In JP’s reply written submissions of 11 May 2026, it was submitted on behalf of JP that only minimal time was spent on the Tong’s claim in relation to Jan’s retention of documents and that on that claim, Jan had sensibly delivered the documents well before the trial and had acted out of genuine concern over the interest of the Tong in not delivering them earlier, and therefore JP were the overall successful party and should be entitled to their costs of the Tong’s Claim.

C.  Discussion

11.  It is not really disputed that the starting point for costs is Order 62 rule 3(2) of RHC, namely if the Court in the exercise of its discretion sees fit to make any order as to costs of or incidental to any proceedings, the Court shall, subject to Order 62, order the costs to follow the event, except where it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs. Further, in exercising its discretion, the Court shall, to such extent, if any, as may be appropriate in the circumstances, take into account those special matters set out in Order 62 rule 5.

12.  It is stated in Hong Kong Civil Procedure 2026 Vol. 1 at para 42/5B/1 that the purpose of a costs order nisi is to enable a party who is dissatisfied with that order to make submissions to the court on the appropriate order of costs. 

13.  It has been submitted on behalf of JP that in the present case where no submissions on costs have ever been made by the parties during trial, the burden on the applicant for variation should bear the normal burden and not any heightened burden as seemed to have been submitted on behalf of the Tong. I accept this.  Having said this, it is clear that the court will not revisit any “substantive decision” it has made. According to this Court’s understanding, it is not JP’s position that this Court should revisit any “substantive decision” in the Judgment.

14.  As set out on behalf of JP that there were two main areas of dispute/“topics” in the two actions, namely whether the affairs of the Tong had been mismanaged so that a BAO would be needed (“Topic 1”) and whether JP had committed any wrongdoings when working for the Tong (“Topic 2”). 

15.  It was submitted on behalf of JP that there were 4 camps of parties, namely (i) the Tong, (ii) Sik; (iii) JP and (iv) SJ.  In fact, in the 496 Action, the plaintiff was Sik on one side, and the defendants named were SJ, SHA and the Tong.  In the 595 Action, the plaintiff was the Tong and the defendants were JP and SJ. 

16.  This Court has pointed out in paragraph 3 of the Judgment that the main protagonists in the two actions were in fact the Tong on one side/ camp and Sik and JP on the other side, or the other camp.

17.  It was set out in paragraph 55 of the Judgment that discord in the Tong/Temple and conflict had arisen between those who supported Gor Hang to be the Principal Monk and JP’s camp on the other side. It was also clear   from those events leading to the two actions , as set out in section B.2 of the Judgment , that the disputes between the two camps were sparked off when in early 2017, Sik and Chai Ping were evicted from their room in the Temple by those managing the Tong , notwithstanding that they had been allowed by Jan to occupy the room and that Jan had allegedly arranged for a team of martial art practitioners to threaten Gor Hang.  This led to Sik issuing the 496 Action on 6 March 2017. 

18.  The conflict between the two camps then deepened.  The disputes led to Jan being dismissed from her duties at the Tong/Temple on 20 December 2017 and Jan then refused to deliver up the Tong’s financial documents and the Tong’s Chops.  This then led to the 595 Action being issued by the Tong on 4 April 2019.

19.  There were essentially 4 claims by the Tong in the 595 Action, and the Court found that the Tong succeeded on Claim (2)(a) and Claim (3) concerning the wrongful retention of the Tong’s financial documents and the Tong Chops, but failed on Clause (2)(b) and Claim (2)(c), for an account and enquiry. As submitted on behalf of the Tong, the variation being sought on behalf of JP in Paragraph 1 of the Variation Summons appear to disregard those claims on which the Tong had succeeded and Jan had failed.  As pointed out on behalf of the Tong, this Court had “treated the 4 sub-claims as a single inter-related basket and set off the wins against the losses”. 

20.  It is clear from the Judgment is that the Tong was successful on its claim against Jan for wrongful retention of the Tong’s financial documents and Tong Chops but failed in its claims for an account and enquiry.  This Court simply took a broad-brush approach in arriving at there being no order as to costs as between the Tong and Jan in relation to Claim (2)(a), Claim(2)(b), Claim (2)(c) and Claim (3) of the Tong’s claims as set out in paragraph 11 of the 595 Sealed Order.  This Court was entitled to do so and the Court sees no ground or reason to vary paragraph 11of the 595 Sealed Order.

21.  As for the Apportionment, the Tong had essentially 4 Claims in the 595 Action , namely Claim (1) for wrongful possession of the Pink Portion  and mesne profits, Claim (2) subdivided into 3 sub-claims concerning (a) delivery up or financial documents and the Tong Chops, (b) an account, and (c) an enquiry, Claim (3) for damages, Claim (4) for BAO, and in JP’s counterclaim, they had sought essentially (i) a declaration that the appointment of the members of the Tong was invalid; (ii) declaration that the appointment of Au-Yeung and Poon as manageresses was invalid; (iii) that Pong could occupy the Yung Chau Memorial hall during his lifetime; and (iv) directions/other reliefs on removal of the manageresses and members of the Tong. 

22.  What is clear is that the 496 Action was on Topic 1 and the 595 Action was on both Topic 1 and Topic 2.  I accept the submission on behalf of JP that Topic 1 was of significant scale concerning the operation and the management of the entire Tong. Although in the 496 Action, Sik was seeking a BAO, and in JP’s counterclaim they also sought a BAO, but JP had raised issues over the Abridged Relations and sought specifically declarations that the appointment of the manageresses and members of the Tong were not valid under the Abridged Regulations and they should be removed.  They were largely successful in this regard.

23.  As set out in the Judgment, there were 6 Categories of the Dispute Issues, and 4 out of 6 Categories, namely Categories II to V concerned Topic 1, and only Category VI concerned the Tong’s allegations against JP. JP’s Counsel has also set out in Appendix-1 of his reply submissions the approximate time spent on Topic 2 during the trial. 

24.  Having considered the respective submissions on behalf of the Tong and on behalf of JP, and having re-considered the categories of issues at the trial and the time spent respectively on Topic 1 and Topic 2, I am prepared to vary the Apportionment to that as sought by JP, namely the apportionment of the Tong’s claim and JP’s counterclaim in the 595 Action be roughly 20/80. 

D.  The Orders

25.  In the above circumstances, I order as follows:

(i) Paragraph 1 of the Variation Summons is dismissed.

(ii) Paragraph 2 of the Variation Summons is allowed.

26.  In light of my above order, as the Tong has succeeded on opposing Paragraph 1, and JP has succeeded on Paragraph 2, I make no order as to costs of and incidental to the Variation Summons.