NG KIN YUEN, Administrator of the estate of LAM TIM STAN also known as LAM TIM alias STAN LAM TIM, deceased v. LAM SIK YING VICTOR AND OTHERS

HCMP 1924/2020

[2025] HKCFI 2742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1924 OF 2020

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D E C I S I O N

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1.  This hearing is fixed pursuant to para 131 of the decision which I handed down on 30 September 2024: see [2024] HKCFI 2689. I will adopt the defined terms used in that decision.

2.  Attending court today are the administrator, Mary, Mo Chun, Susie and Tony. They have the same legal representation today as in the substantive hearings. Victor and Mo Lin are absent.

3.  Victor was legally represented at the substantive hearings. Upon his former solicitors filing the certificate of compliance in accordance with Order 67, rule 6(1) of the Rules of the High Court on 17 July 2024, Victor has been acting in person since that day. He has so far not made any appearance in these proceedings, including today’s hearing.

4.  Mo Lin has all along been absent.

5.  Based on the written confirmations of the solicitors for the parties who are present today, I am satisfied that both Victor and Mo Lin were served with notice of today’s hearing date. Furthermore, I am satisfied that Victor has been served with notice of the terms of the proposed costs orders of each of the other parties, except Susie. But I do not consider there is any unfairness to Victor if we proceed today as the costs sought by Susie are broadly similar to the costs order sought by the others. I therefore at the beginning of this hearing directed that we proceed in the absence of Victor and Mo Lin.

6.  In the amended originating summons, a host of issues were raised by the administrator for the court’s determination pursuant to Order 85, rule 2.

7.  Out of all the issues, I apportion two-thirds of the time spent to the D2 status issue and the Madam Wong status issue. These two issues are the most contentious issues. In terms of evidence, written submissions and the actual hearing time, I consider that about two-thirds of the costs can fairly be apportioned to them. As an illustration, the substantive hearings were spread over three days, namely 30 March, 30 August and 31 August 2023. The bulk of the last two days were spent on hearing arguments on the two issues.

8.  I would correspondingly apportion the remaining one-third of the costs to the rest of the issues.

9.  For those latter issues, the general consensus of the parties before me is that they fall within category 1 under the Buckton classification[1]. They are questions that need to be determined for the proper administration of the estate. Therefore, the costs incurred by all the parties are costs incurred for the benefit of the estate. Hence, each of them should be paid his or her costs out of the estate.

10.  I would order that the administrator, Mary, Mo Chun, Susie and Tony be entitled to one-third of the costs. The administrator’s costs in this regard should be assessed on a trustee basis. As to the basis of taxation for the others’ costs, I shall come back to that issue a bit later on[2].

11.  The next question is whether Victor should also be given the same costs. While he has not applied for costs pursuant to my earlier direction, it seems fair that he should also be awarded one-third of the costs in accordance with the Buckton principle. I would therefore make an order in his favour, similar to the one which I have made just now.

12.  As for the D2 status issue and the Madam Wong status issue, it is plain that they come within category 4 under the Buckton classification. These issues have been fought as hostile litigation among the beneficiaries. These issues, once resolved, have a significant impact on the quantum of the entitlements of the beneficiaries.

13.  As regards the Madam Wong status issue, the protagonists are Victor on the one hand and Mary, Mo Chun, Susie and Tony on the other.

14.  The evidence before the court is that Victor is the sole beneficiary of Madam Wong’s estate in Hong Kong. If he were to succeed in his assertion that Madam Wong was the wife rather than the concubine of the deceased, Madam Wong’s estate would be entitled to one half of the deceased’s estate, and all the other beneficiaries would have their entitlements halved. As the sole beneficiary of her estate in Hong Kong, the entire amount would have enured to Victor’s benefit. Victor puts forward a factual case based on the fuzheng scenario, which the other side does not accept. The two sides’ interests are therefore adverse to each other, and the issue has been fought in a typical adversarial manner.

15.  As regards the D2 status issue, the protagonists are Victor on the one hand and Mary, Mo Chun and Tony on the other. Susie is neutral on this issue. I should add that the administrator also adopts a neutral stance on both issues.

16.  Similarly (but to a lesser extent), if Victor’s position is upheld, Mary would be excluded as a beneficiary, and Victor’s entitlement would be increased (and so would the other siblings’).

17.  The issue has also been fought in a hostile manner, with both sides relying on different documents to support their respective cases.

18.  For the above reasons, in respect of these two issues, costs should follow the event. Victor, being the unsuccessful party, should pay the costs of the successful parties. I also consider it appropriate that he should bear the costs of the neutral parties, namely the administrator and Susie (the latter in respect of the D2 status issue only). As both have spent costs on the issues, Victor, being the losing party, should bear their costs rather than the estate.

19.  Victor should bear costs on these two issues on an indemnity basis for the following reasons.

20.  As regards the Madam Wong status issue, Victor’s case is without merit. As found, the evidence pointing to the conclusion that she was the concubine is overwhelming: see para 107.

21.  His case has been summarily rejected by the court as unbelievable as it is contradicted by previous opposite statements made by himself and Madam Wong at different times over the past four decades: see para 123.

22.  The manner in which Victor brings up and pursues the issues should also attract the court’s criticism. Victor raised the issue at a very late stage. As observed by the administrator, all along, the administration has proceeded on the basis that Madam Wong was the deceased’s concubine and it was only around the time the present proceedings were commenced that Victor suggested for the first time that she was indeed the lawful wife: see para 83.

23.  Even in these proceedings, Victor made a last-minute unmeritorious application trying to adduce further evidence three years after the commencement of the proceedings. His summons was taken out just one day before the first hearing: see paras 7 and 126.

24.  Even at the hearing where the case was to be disposed of substantively, counsel for Victor was still submitting that there should be cross-examination on whether the alleged dinner in fact happened, and there be expert evidence adduced on whether the combined effect of a ring, a celebration dinner and the change in how Madam Wong was addressed by the children amounted to fuzheng.

25.  As regards the D2 status issue, I concluded that no weight should be given to the documents relied on by Victor. In particular, I commented that the evidential value of Mo Lin’s note of 2007 is highly questionable.

26.  The manner in which Victor had pursued the issue, particularly as regards expert evidence, is highly unsatisfactory. While he indicated at an earlier stage that he would challenge Mary’s case and he reserved his right to adduce his own evidence on Qing law, such evidence was never forthcoming.

27.  Yet at the adjourned hearing, his counsel handed up, without any prior notice to anyone, a draft unsigned report on Chinese law and tried to rely on it, and that had been refused by the court: see paras 72 to 74. Victor’s conduct of the case, insofar as the D2 status issue is concerned, is not proper.

28.  For all of the above reasons, there is ample justification to order Victor to bear the costs of the others on those issues on an indemnity basis.

29.  Similarly, as regards Victor’s summons to file further evidence, that being a last-minute, unmeritorious and unsuccessful application, he should pay the costs to the other parties also on an indemnity basis.

30.  That would deal with the two-third portion of the overall costs.

31.  As to the remaining one-third portion, for the beneficiaries’ costs, applying Re Buckton, I should order that they be taxed on a solicitor and own client basis: see 414.

32.  However, as pointed out by Mr Alan Yung, counsel for Tony, that would mean that in the taxation exercise, the same sets of costs would be subject to two different bases of taxation.

33.  In the interest of a speedy and efficient disposal of the taxation, I would therefore exercise my discretion and order that the one-third portion of the costs be also taxed on an indemnity basis instead of on a solicitor and own client basis.

34.  Mary, Mo Chun and Tony ask for an order that insofar as any part of their costs incurred on the Madam Wong status issue and the D2 status issue cannot be recovered from Victor, the shortfall be paid out from the estate. Susie does not make this request.

35.  In my view, there does not appear to be any proper basis to make such an order in favour of those beneficiaries. The costs position of category 4 cases has been stated clearly in Re Buckton, at 415:

“… In this class the application is made by a beneficiary who makes a claim adverse to other beneficiaries, and really takes advantage of the convenient procedure by originating summons to get a question determined which, but for this procedure, would be the subject of an action commenced by writ, and would strictly fall within the description of litigation. It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants, I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs. …”

36.  There is nothing there to suggest that any shortfall not recoverable from the unsuccessful party should be paid out of the estate. Prima facie, if that is to happen, that may operate to the prejudice of any beneficiary who has no interest and who has not fought in the hostile litigation.

37.  Mr Acorn Lau, counsel for Mary and Mo Chun, relies on the orders made in Lam Yui Ming v Lam Yui Pun [2020] HKCFI 2545: see para 35(2) to (5). He invites the court to make the same order in respect of the shortfall, if any.

38.  However, there is no express discussion of why that shortfall order was made in that decision. In the absence of any other authority supporting the shortfall order now requested by some of the beneficiaries, I decline to make that order.

39.  Lastly, in respect of the costs incurred on the issue of costs, inclusive of today’s hearing, these costs should receive the same treatment as the overall costs order applicable to the amended originating summons. The costs issue, as I see it, can properly be regarded as part of the overall proceedings.

40.  I therefore make the following orders, the wording of which has been agreed by the parties who are before me today:

(1)  (a) The costs of and occasioned by the amended originating summons, including the hearing on 30 March 2023, 30 August 2023 and 31 August 2023 (save and except those costs of and occasioned by the 1^st defendant’s summons filed on 29 March 2023 (the “1^st Defendants Summons”)), this application and the hearing on 13 June 2025, and all costs reserved (the “Administration Action Costs”); and (b) the costs of and occasioned by the 1^st Defendant’s Summons (the “Summons Costs”) incurred by the plaintiff be paid out of the deceased’s estate (the “Estate”) on a trustee basis.

(2)  The 1^st defendant shall reimburse the Estate for two-thirds of both the Administration Action Costs and the Summons Costs incurred by the plaintiff, to be deducted from and/or set off against the 1^st defendant’s net entitlement and/or interest in the Estate in the first instance, and to be borne and paid by the 1^st defendant personally in the event of any shortfall.

(3)  One-third of the Administration Action Costs incurred by the 1^st, 2^nd, 4^th, 5^th and 6^th defendants be paid out of the Estate on an indemnity basis, to be taxed if not agreed.

(4)  Two-thirds of the Administration Action Costs and the whole of the Summons Costs incurred by the 2^nd, 4^th, 5^th and 6^th defendants be borne personally by the 1^st defendant on an indemnity basis, to be taxed if not agreed, to be reimbursed by the Estate out of the 1^st defendant’s net entitlement and/or interest in the Estate in the first instance, and to be borne and paid by the 1^st defendant personally in the event of any shortfall.

(5)  The 5^th defendant’s own costs to be taxed in accordance with the Legal Aid Regulations.