XU ZHIQIANG AND OTHERS v. NG KWOK ON AND OTHERS

HCA 1551/2016

[2018] HKCFI 274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1551 OF 2016

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JUDGMENT

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Background

1.  This is the Plaintiffs’ appeal against the indemnity costs order made in favour of the 2^nd and 3^rd Defendants by Master J. Wong on 11 September 2017.  The costs order was made following the Plaintiffs’ application to discontinue these proceedings.  This appeal does not involve the 1^st Defendant as he has agreed with the terms of discontinuance proposed by the Plaintiffs.

2.  This matter arose out of the alleged employment of the 2^nd Defendant by the 2^nd and 3^rd Plaintiffs and the alleged employment of the 3^rd Defendant by the 3^rd Plaintiff. The 1^st Plaintiff was and still is the sole shareholder and director of the 2^nd and 3^rd Plaintiffs.

3.  I set out the relevant procedural history below which is useful for the understanding of the matter:

(1)   The 2^nd Defendant filed a claim in the Labour Tribunal against the Plaintiffs on 22 October 2015.  On the same day, the 3^rd Defendant also filed a claim in the Labour Tribunal against the 1^st and 3^rd Plaintiffs. The Defendants’ claims consisted of outstanding wages and other entitlements under their alleged employment contracts with the relevant Plaintiffs.

(2)   On 10 June 2016, the Plaintiffs commenced this action against the Defendants.  The Plaintiffs made various allegations of fraud against the Defendants.  For example, the Plaintiffs alleged that the Defendants had committed a fraud against thePlaintiffs through the signing of certain employment contractsbetween the Plaintiffs and the Defendants themselves.

(3)   Two days later on 12 June 2016, the Plaintiffs applied to havethe Labour Tribunal proceedings transferred to the High Court relying on, inter alia, the filing of this action which involved similar factual issues.

(4)   On 26 July 2016, an order was made for the transfer of the Labour Tribunal proceedings to the High Court.

(5)   On 6 December 2016, the 2^nd and 3^rd Defendants applied for security for costs against the Plaintiffs.  The substantial hearing was eventually fixed on 11 September 2017.

(6)   On 29 January 2017, leave was granted to the 2^nd and 3^rdDefendants to withdraw their counterclaim with costs reserved. 

(7)   On 9 February 2017, the Labour Tribunal held in favour of the 1^st Defendant in his claim against the 2^nd and 3^rd Plaintiffs for unpaid salary and other entitlements under his employment contract in the total sum of HK$392,611.53.

(8)   On 25 August 2017 which was less than three weeks from the substantive hearing of the security for costs application, the Plaintiffs filed a summons for the discontinuance of this action.

(9)   At the hearing before Master J. Wong on 11 September 2017, the Master allowed the discontinuance and made the following costs order:

(a)Costs of this action (including costs of the 2^nd and 3^rd Defendants’ security for costs Summons filed on 6 December 2016 and the amendment Summons filed on 2 August 2017 and all costs reserved save in relation to the withdrawal of the 2^nd and 3^rd Defendants’ counterclaim) be paid by the Plaintiffs to the 2^nd and 3^rd Defendants on an indemnity basis, to be taxed if not agreed;

(b)Costs of the Plaintiffs’ discontinuance Summons dated 25 August 2017, including costs reserved and certificate for counsel for the hearing on 11 September 2017, be paid by the Plaintiffs to the 2^nd and 3^rd Defendants on an indemnity basis, to be taxed if not agreed; and

(c)Costs of and occasioned by the withdrawal of the 2^nd and 3^rd Defendants’ counterclaim be paid by the 2^nd and 3^rd Defendants to the Plaintiffs on a party and party basis, to be taxed if not agreed.

Issues

4.  In this appeal, the Plaintiffs challenged two of the three costs order made by Master J. Wong, namely the order set out in para 3(9)(a) and (b) above.

5.  The issue before me is whether costs on an indemnity basis should be awarded against the Plaintiffs in these circumstances where they discontinued their action and their fraud claims against the 2^nd and 3^rd Defendants.

Legal principles

6.  An appeal of the master’s decision is by way of a de novo hearing (see para 58/1/2, Hong Kong Civil Procedure 2018 (“HKCP”)).

7.  However, in relation to an appeal as to costs only, a judge generally will not allow an appeal from the master’s costs order unless it is unreasonable or the master erred in law, that is if he either failed to take into account proper matters or took into account matters that should not have been taken into account (see para 58/1/6, HKCP and the case of Paul Y-ITC Construction Ltd v Kin Shing Co Ltd [1999] 1 HKC 511 at 515 per Sakhrani J).

8.  The Court has a wide discretion to decide on the question of costs and whether indemnity costs should be ordered (see for example, Overseas Trust Bank Ltd v Coopers & Lybrand [1991] 1 HKLR 177, at 182F).

9.  Costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner.  However, these are not the only circumstances where indemnity costs might properly be made (see para 62/App/12, HKCP and the Overseas Trust Bank Ltd case at 183C).

10.  Courts have emphasised the undesirability of attempting to define the circumstances in which orders for indemnity costs are to be made.  It has been said that the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be "appropriate" (see Town Planning Board v Society for Protection of the Harbour Ltd (No 2) [2004] 2 HKLRD 95, at para 17).

11.  In considering whether indemnity costs are to be awarded, the Court may consider any matter relating to the litigation and the parties’ conduct in it and also circumstances leading to the litigation, but no further (see the Town Planning Board case at para 18). 

12.  There has to have some special or unusual feature which could justify an award of indemnity costs.  Godfrey J (as he then was) said in the Overseas Trust Bank Ltd case at 182J – 183A):

“ To justify an order for costs on the common fund basis, the case has to have some special or unusual feature: see Preston v. Preston [1982] Fam 17 and my own judgment in Wharf Properties Limited v. Eric Cumine Associates, HCA No.‌13431/1983 and CL No.48/1985, 24th February 1988, unreported. In my opinion, in order to justify a taxation on the indemnity basis, the successful party has to show, either that the case is one of a type already recognised in the practice of the court as warranting a taxation on that basis (such as, for example, the contempt cases to which I have already referred) or that there is some feature in the case even more special or unusual than one which would justify a taxation on the common fund basis.”

13.  The learned judge clarified in his subsequent judgment in the Court of Appeal case of Sung Foo Kee Ltd v Pak Lik Co (a firm) [1996] 3 HKC 570, at 575E that his judgment does not purport to be and is not to be taken as determinative of the sort of case in which indemnity costs may be ordered.

Analysis

14.  Both parties have spent a considerable amount of time at the respective hearings before Master J. Wong and me to discuss the situation and the authorities on whether indemnity costs should be ordered where the plaintiff discontinued his claim on fraud against the defendant.

15.  The 2^nd and 3^rd Defendants’ counsel, Mr Fan, relied on Yuen Man Chun v Hong Kong Boxing Association Ltd (unreported, HCMP 962/2016, 17 February 2017, Harris J).  In that case, indemnity costs were considered to be appropriate where the plaintiff discontinued his claim based on fraud.  It was a 3-page judgment where the learned judge adopted the decision of Richards J (as he then was) in Clutterbuck and Paton v HSBC plc [2015] EWHC 3233 (Ch), at para 20:

“ I therefore consider that allegations of fraud will in general justify the court in ordering costs upon an indemnity basis where the claimant serves notice of discontinuance. In a case to which I drew the attention of counsel, Jarvis plc v Pricewaterhouse­Coopers [2000] 2 ECLC 368, Lightman J took the same view.”

16.  Mr Fan also quoted Quorum Associates LLC v Dandan Zhang(unreported, HCA 1911/2002, 11 August 2005) which was also a case where indemnity costs were ordered in favour of a former employee against her former employer when the latter discontinued their action containing serious allegations such as breach of confidentiality.

17.  Mr Fan invited the Court to find that in the case of discontinuance of a claim involving allegations of fraud, indemnity costs order should be made against the plaintiff.

18.  On the other hand, the Plaintiffs’ counsel, Mr Wong, submitted that costs on an indemnity basis would only be awarded if the defendant can show that the allegations of fraud were wholly unfounded and bound to fail.

19.  Mr Wong relied on a number of cases for the proposition that Hong Kong Courts had always required the defendant to show that, in order to be awarded indemnity costs in cases in which allegations of fraud were made but not proven, such allegations of fraud ought never to have been made, or they were unsupported by evidence and unsustainable (see Hobbins v Royal Skandia Life Assurance Ltd [2012] 1 HKLRD 977 at paras 140 – 142, per Reyes J, which was applied in Taihan Electric Wire Co Ltd & Anor v Lee Chi Yuen Arctic & Ors (unreported, HCA 454/2013, 18 December 2013),  Au-Yeung J at paras 5, 21, 23; Ricoh Hong Kong Ltd v Wallbanck Brothers Securities (Hong Kong) Ltd (unreported, DCCJ 2454/2013, 25 June 2015), HH Judge A Li at para 94).

20.  I am of the view that the Court has to consider the unique circumstances of each case and it is not right to lay down a general rule that in every case where the party making allegations of fraud decided to discontinue the claim, indemnity costs should be made against him.

21.  Having said that, where serious allegations of fraud had been made and was found by the Court after trial or hearing as unfounded and/ or unsupported by evidence and/or something that ought not have been made, that would be a special and unusual feature that would justify indemnity costs.

22.  In the Hobbins case [1], Reyes J found after trial that the allegations of fraud by the plaintiff were unsupported by evidence and should never have been made.  He ordered indemnity costs against the plaintiff.  The learned judge said this at paras 140 – 142:

“ 140. I propose to impose indemnity costs because throughout the entire proceedings accusations of fraud were levied against Skandia and Clearwater which ought never to have been made.

141. To my mind, the accusations of fraud were unsupported by the evidence. But right to the last minute Mr Hobbins’s counsel was accusing Mr Keating personally of fraud and avarice in his dealings with Mr Hobbins notwithstanding the obvious lack of evidence to that effect. On the other hand, accusations of conspiracy between Skandia and Clearwater were maintained until the close of evidence. The conspiracy claims were only dropped at that late stage.

142. Counsel are reminded of their paramount duty to the Courtnot to raise accusations of fraud unless there is a cogent evidentialbasis for such allegations.  If an apparently initially viable case of fraud proves in the course of trial to be unsustainable, it should be dropped at the earliest opportunity.  Regrettably in my view, counsel's conduct at trial in relation to the handling of fraud allegations did not meet the standard which the Court expects.”

23.  In the Taihan case [2], Au-Yeung J did not award indemnity costs as she found, after hearing the 2^nd plaintiff’s application for Mareva injunction, that the plaintiffs’ case was not an entirely unfounded case of fraud.  Nor was it an opportunistic move or tactical interlocutory “nuclear weapon” to apply for the Mareva injunction, and to pursue it after two failed attempts (see paras 18, 21 and 23 of the judgment).

24.  In the Ricoh case [3],  HH Judge A Li cited the Hobbins case and ordered indemnity costs against the defendant.  The learned judge found after trial that the defendant had pursued its groundless and unsubstantiated defence in an oppressive manner (see paras 94 and 95 of the judgment).

25.  Mr Wong argued that the Court should not make an indemnity costs order unless allegations of fraud were made and found to be unsupported by evidence and/or unfounded and/or something that ought not have been made.  I disagree.  Whilst the above cases show that the Court’s finding of unmeritorious allegations of fraud would amount to a special and unusual feature that justify an indemnity costs order, they do not go so far to suggest that without such finding, it would not be appropriate to order indemnity costs.  In a case where a party has made allegations of fraud that should not have been made, that party should not be exonerated from the sanction of an indemnity costs order simply because he abandoned his claim before trial and thus depriving the Court with an opportunity to make a determination on the lack of merits of his fraud allegations.  Furthermore, if Mr Wong is correct, in a case where the plaintiff discontinued the fraud claims before trial, the Court would be required to conduct a detail examination of the merits of the fraud allegations before it can decide whether to make an indemnity costs.  That would not be the right approach or a proper use of the time and resources of the Court.

26.  At the hearing, both parties have made submissions on the effect of the Clutterbuck case [4] and the Jarvis case [5] where indemnity costs were made against the plaintiff who had made allegations of fraud but discontinued the action before trial.  Both cases were referred to in the Yuen Man Chun case [6].

27.  In the Clutterbuck case, the plaintiff claimed against the defendants for damages in the tort of deceit and/or negligence.  Serious allegations of fraud were made against the 11^th defendant.  The 11^th defendant applied to strike out the claim as they lacked particulars.  After certain hearings, the plaintiff accepted that the claim had to be redrafted.  The day before the hearing of the striking out application, the plaintiff served a notice of discontinuance of the entire proceedings.  In dealing with whether indemnity costs should be made, similar submissions were made by the 11^th defendant and the plaintiff as in the present case.  In coming to the conclusion of making an indemnity costs order, Richards J(as he then was) said this at paras 17 to 21:

“ 17 The underlying rationale of that approach is that the seriousness of allegations of fraud are such that where they fail they should be marked with an order for indemnity costs because, in effect, the defendant has no choice but to come to court to defend his position.

18 In circumstances where, instead of the matter proceedingto trial and failing, the claimant serves a notice of discontinuance, thereby abandoning the case in fraud, it is in my judgment appropriate for the court to approach the question of costs in the same way.

19 The defendant has been put in this case to considerable expense in defending to date the allegations made. As I mentioned earlier a defence was served, applications were made to strike out the particulars of claim and the applications to amend were resisted in circumstances where the amendments would maintain the allegations of fraud.

20 I therefore consider that allegations of fraud will in general justify the court in ordering costs upon an indemnity basis where the claimant serves notice of discontinuance. In a case to which I drew the attention of counsel, Jarvis plc v PricewaterhouseCoopers [2000] 2 ECLC 368, Lightman J took the same view.

21 I therefore hold that on that ground alone it is appropriate to order the claimants to pay the eleventh defendant’s costs of these proceedings on the indemnity basis and to order an assessment on that basis if the costs are not agreed.”

28.  In the Jarvis case, an indemnity costs order was made on the basis that very serious allegations of bad faith and impropriety were made against the plaintiff’s former auditor which in Lightman J’s view were bound to fail.  The auditor defendant was performing its duty for the benefit of the interested person and its role was analogous to that of a trustee.  There was no reason and it was not fair why the auditor defendant should be out of pocket on costs when the plaintiff discontinued the claims the day before the substantive hearing was due to commence (see paras 16 to 18 of the judgment).  At para 18, Lightman J said:

“ 18. Turning now to the facts of this case, these proceedings failed: indeed as it appears to me (not least from the fact of the discontinuance and the unequivocal withdrawal of the allegations against PwC) these proceedings were bound to fail. PwC at all times acted with total propriety. The most serious allegations of impropriety were made against PwC supported by statements of three directors of Jarvis, which were only withdrawn in the course of the hearing in circumstances to which I have already referred to. The proceedings were discontinued only at the very last moment and no reason was then given. Jarvis refused to cooperate in obtaining the expedited hearing of the proceedings, again until the last minute. On these grounds alone I think that justice requires that an order should be made that Jarvis pay the costs of PwC on an indemnity basis and I so order. …”

29.  Mr Fan invited the Court to adopt the Clutterbuck case and the Jarvis case and hold that since the Plaintiffs had made allegations of fraud, discontinuance alone would justify the making of an indemnity costs order.  I do not agree with Mr Fan and I do not see the two cases as laying down the principle that discontinuance of action in itself would be sufficient for the Court to order indemnity costs.  In cases where there is no determination by the Court that the fraud allegations are unfounded and/ or unsupported by evidence and/or something that ought not have been made, the Court should not award indemnity costs simply on the discontinuance alone.

30.  I am not undermining the importance of discontinuance of theaction as an important consideration in the exercise of the Court’s discretion.  After all, unless there are good explanations, discontinuance is a strong indication of the lack of merits of one’s claims.  Furthermore, it is well established that a party should not make allegation of fraud lightlyor without proper foundation or evidence in support.  As in the Jarvis case, where the plaintiff discontinues the action without any explanation, it is open to the Court to come to the view that the claims and allegations have no merits. 

31.  In the Clutterbuck case, it is pretty clear that the plaintiff was not able to salvage its claim by providing the necessary particulars.  The discontinuance of the action just the day before the striking out hearing strongly indicated the plaintiff’s acceptance that its case could not be substantiated.  The plaintiff had provided no proper reason why they had to discontinue the proceedings.  In the Jarvis case, the claim against the auditor defendant was a strategic move to delay the plaintiff’s compliance of certain statutory obligations.

32.  There might be cases where a party has a proper reason to discontinue his claims other than due to the hopeless nature of them. In Newmarket Holdings (Guernsey) Ltd v Confiance Ltd (t/a InternationalWealth Trust) (unreported, 7 March 2017) [7], Deputy Master Jefferis made a distinction between voluntary withdrawal (where he realized he had a bad claim) and forced withdrawal (where there is a change in circumstances putting significant pressure on the plaintiff to withdraw a claim despite its merit).  In that case, the claim was struck out as the plaintiff had failed to comply with the security for costs order.  There was evidence that the plaintiff had taken steps to raise funds to comply with the order.  The Courtalso took the view that the claim was neither speculative nor opportunistic.  The Court declined to make an indemnity costs order.

33.  I do not consider it helpful to divide discontinuance of proceedings into voluntary and forced withdrawal.  That case merely provides an example where there might be proper reason to discontinue rather than due to the plaintiff realizing that his case is bound to fail.  Any reasons given would have to be examined closely and to be weighed together with the other factors in individual cases. Cogent evidence is expected to be provided to substantiate the reasons given.

34.  In the present case, Mr Wong submitted that the case is at a relatively early stage.  There is an outstanding application to amend the Defence and no discovery has been done yet.  Mr Wong also said that the reason for the discontinuance of action was that the 1^st Plaintiff, who is alsothe sole shareholder and director of the 2^nd and 3^rd Plaintiffs, was diagnosed with a serious heart condition soon after the Writ in this action had been filed in June 2016.  He relied on a brief affirmation by a legal executive of the Plaintiffs’ solicitor, Mr Wu, made on 6 February 2017 exhibiting medical records of the 1^st Plaintiff from a hospital in Guangzhou.

35.  Despite Mr Wong’s effort to advance the Plaintiffs’ case, the Plaintiffs have not filed any evidence to attribute the discontinuance to the poor health of the 1^st Plaintiff.  Mr Wong could only refer to hearsay evidence from a legal executive of the Plaintiffs’ solicitors.  Mr Wu’s Affirmation was made in support of the Plaintiffs’ application for an extension of time to file affirmation in opposition to the security for costs application. The Plaintiffs’ application to discontinue this action was madeon 25 August 2017 which was almost 7 months after the filing of Mr Wu’s Affirmation on 6 February 2017.  Meanwhile, the Plaintiffs have taken active steps in this action:

(1)   The medical records of the 1^st Plaintiff was dated August and September 2016.  Not long afterwards on 25 November 2016, the Plaintiffs applied to strike out part of the Defence and Counterclaim of the 2^nd and 3^rd Defendants;

(2)   Also, on 25 November 2016, the Plaintiffs sought Further and Better Particulars of the 2^nd and 3^rd Defendants’ Defence;

(3)   The Plaintiffs did not appear to be inhibited from preparing and arguing the above applications before the Court on 9 December 2016;

(4)   On 16 January 2017, the Plaintiffs took out a case management summons, which was dealt with before the Court;

(5)   On 26 January 2017, the Plaintiffs took out an application to vary the costs order dated 20 January 2017 made by Master R. Lai in respect of the 2^nd and 3^rd Defendants’ application to amend the Amended Defence and Counterclaim.  The matter was argued before the Master on 15 February 2017; and

(6)   The Plaintiffs’ application for Further and Better Particulars was actively pursued and argued before Master Lai on 8 May 2017.

36.  The Plaintiffs did not provide any updated information on his health since September 2016.  If the medical condition of the 1^st Plaintiff was so bad and that had prevented him from pursuing this case, why would he only apply to discontinue the action almost a year later in August 2017?  On the contrary, it is apparent that the 1^st Plaintiff has not been deterred by his medical condition in pursuing the case. 

37.  The Plaintiffs have sought to undertake to file an affidavit to explain the reason for the discontinuance but this was declined by Master J. Wong at the last hearing on 11 September 2017.  I do not see any fault in the Master’s ruling.  In paragraph 24 of his decision, the Master remarked that he can see clear tactical move on the part of the Plaintiffs in this case.

38.  I appreciate that the Plaintiffs discontinued the action shortly before the security for costs application and not just before trial or a striking out application.  Mr Fan submitted that the Plaintiffs must realise that they were bound to fail in opposing the application for security for costs.  The 1^st Plaintiff does not reside in Hong Kong and has no assets here.  The 2^nd and 3^rd Plaintiffs are empty companies with no substantial assets.  It appears to me that there is a reasonably strong case to order security for costs against the Plaintiffs.

39.  I am mindful that the Court has not had an opportunity to hear evidence and adjudicate on the issues.  This would affect the weight I would attach to the merits of the allegations in the exercise of my discretion.  In the present case, I believe I am entitled to take into account the following factors highlighted by Mr Fan in relation to the serious allegations made by the Plaintiffs:

(1)   Whilst the Plaintiffs challenged that there was no employment contracts with the 2^nd and 3^rd Defendants, the fact that the 2^nd Plaintiff was convicted after trial for not paying the mandatory provident fund contributions for the 2^nd Defendant demonstrated that the magistrate was satisfied that there was an employment contract between the 2^nd and 3^rd Plaintiffs and the 2^nd Defendant.

(2)   Similarly, the 3^rd Defendant relied on the claim by the Mandatory Provident Fund Schemes Authority in the Small Claims Tribunal against the 3^rd Plaintiff to show that there must be an employment contract between the 3^rd Plaintiff and the 3^rd Defendant.

40.  In the Statement of Claim, the Plaintiffs’ claimsagainst the 2^nd and 3^rd Defendants are based on serious allegations of fraud.  The 2^nd and 3^rd Defendants have no choice but to meet these serious allegations. They could only afford to retain legal advisers to deal with this action and they have to defend in person their own labour claims which have been transferred to the High Court.  The difference in representationshave prevented the consolidation of the three High Court cases.  In Master J. Wong’s decision, he pointed out that the effect of the discontinuance of the present action means that the parties are left with the claims originally brought by the 2^nd and 3^rd Defendants in the Labour Tribunal in October 2016.  Time and costs have been wasted.  Contrasting it with the case of the 1^st Defendant, he was able to obtain an award on 9 February 2017 against the 2^nd and 3^rd Plaintiffs for unpaid salary and other employment entitlements in the Labour Tribunal claims.  In the circumstances, it would be unfair for the 2^nd and 3^rd Defendants to be out of pocket if the Court only ordered costs on a party and party basis.

41.  Mr Fan has invited me to compare this case with the facts of the Dandan Zhang’s case[8] where the Court made an indemnity costsupon the discontinuance of the proceedings.  I do not find that exercise to be useful.  I should be looking at the evidence of this case in coming up with my decision.  Also, I note that there are significant differences between the two case.  In the Dandan Zhang’s case, there was a Court’s determination in a parallel proceedings rejecting the claim of the former employer.  That was considered to be the reason why the plaintiff withdrew the other proceedings which had been stayed pending the determination of the parallel proceedings.

42.  I also do not put any weight to Mr Fan’s submission that the Plaintiffs have failed to accept the offer by them to settle the costs without going to Court. The 2^nd and 3^rd Defendants have made two offers for their costs, one on 1 September 2017 for HK$700,000, the other one on 6 September 2017 for HK$400,000.  However, no particulars of the costs were provided to enable the Plaintiffs to assess the reasonableness of the offer.

43.  Judging from all the circumstances of the case including the serious nature of the allegations, the conduct of the proceedings, the discontinuance of the whole action shortly before the security for costs hearing and the absence or lack of a proper explanation for the discontinuance, I see no fault in the decision reached by the Master.  His decision was not unreasonable and he did not err in law.   For the reasons that I have set out above and looking at the appeal afresh, I also come to the conclusion that there are special and unusual features in this case that justify the order of indemnity costs against the Plaintiffs.

Order

44.  In the premises, I make an order dismissing the Plaintiffs’ appeal.

45.  At the hearing, I heard parties’ submission on costs depending on my decision on the appeal   Having affirmed the decision of Master J. Wong and considering all the circumstances of this case, I see no good reason why the 2^nd and 3^rd Defendant should be out of pocket in dealing with the Plaintiffs appeal.  In the premises, I order that the costs of the appeal including the hearing on 16 January 2018 be to the 2^nd and 3^rd Defendants on an indemnity basis with certificate for counsel, such costs are to be assessed summarily.

46.  Mr Fan submitted a statement of costs for the summary assessment of costs in the total sum of HK$169,900.  Having considered the statement, I allow the costs in full and I assess the 2^nd and 3^rd Defendants’ costs at HK$169,900. 

47.  I thank counsel for their assistance.