KOO MING KOWN v. THE BAPTIST CONVENTION OF HONG KONG AND OTHERS

HCA 694/2024

[2026] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 694 OF 2024

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D E C I S I O N

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A. INTRODUCTION

1.  By a summons dated 2 May 2025 (“the Summons”), the Plaintiff (“P”)  seeks an order to join 18 individuals as the Defendants (ie Intended 5^th Defendant to Intended 22^nd Defendant, “ID5” to “ID22”, collectively “IDs”)  in these proceedings (“the Joinder Application”), and leave to amended the Amended Writ of Summons, and Amended Statement of Claim in the form of the draft Re-Amended Writ of Summons and the draft Re-Amended Statement of Claim (“DRASOC”)  annexed to the Summons (“the Amendment Application”).

2.  In the hearing on 26 August 2025, Master Dick Ho dismissed the Summons with costs to the Defendants (ie the 1^st to the 4^th Defendants, “D1” to “D4”, collectively “Ds”)  and IDs.  This is the appeal against the Master’s decision.  In accordance with the well-established principle, the appeal before me is a de novo hearing, and I approach the Joinder Application and the Amendment Application made by the Summons as if the same came before me for the first time[1].

3.  In this hearing, Mr Denis Chang SC, leading Mr Leon Ho, represent P.  Mr Abraham Chan SC, leading Mr Richard Yip and Mr Enoch Fong, represent Ds and IDs.

4.  Mr Denis Chang SC has made detailed submissions both in writing and orally in support of P’s appeal.  Notwithstanding Mr Chang SC’s eloquent submissions, I came to the conclusion that P’s appeal is devoid of merits and must be dismissed.  My reasons appear below.

B.   BACKGROUND[2]

5.  P previously commenced HCA 1339/2014 (“HCA 1339”)  and HCA 1619/2024 (“HCA 1619”)  against various defendants including The Baptist Convention of Hong Kong (“BCHK”), which is D1 in these proceedings.

6.  In 2022, P was ordered to pay costs of BCHK and other defendants in HCA 1339 and HCA 1619 on indemnity basis.  D2 is the chairman of BCHK.  D3 was and is a partner of Messrs Or & Partner (“O&P”).  O&P acted for BCHK in HCA 1339 and HCA 1619.  D4 was and is a consultant solicitor of Messrs So, Lung & Associates (“SL&A”), and the Honorary Legal Adviser of BCHK.

7.  On about 26 February 2023, D4 sent her invoice (“the 1619 Invoice”)  in the sum of HK$640,000 for the 53.33 hours incurred in HCA 1619 at an hourly rate of HK$12,000 to the Pui Ching Follow Up Committee (“the Committee”)  for approval.  The Committee was set up by BCHK and had the authority and duty to make decisions and/or render approval on matters in relation to legal actions of BCHK.  On 27 February 2023, the Committee on behalf of BCHK approved the 1619 Invoice.

8.  On about 21 April 2023, D4 sent her invoice (“the 1339 Invoice”)  in the sum of HK$362,000 for the 30.17 hours incurred in HCA 1339 at an hourly rate of HK$12,000 to the Committee for approval.  On 22 April 2023, the Committee on behalf of BCHK approved the 1339 Invoice.

9.  In April 2023, O&P filed and served the Bill of Costs in respect of HCA 1619 (“1619 BOC”)  and the Bill of Costs in respect of HCA 1339 (“1339 BOC”).  It was claimed in the 1619 BOC and the 1339 BOC (“BOCs”)  that costs were incurred by BCHK “for their In-House Legal Advisor Miss Sandy HY Wong” ie D4 in the total sum of HK$640,000 (for HCA 1619)  and HK$362,000 (for HCA 1339), and that D4 charged at a rate of HK$12,000 per hour.  In each of the BOCs, O&P and D3 “certify that the amount claimed in the bill of costs does not exceed [BCHK’s] liability for costs to [BCHK] and [O&P] in respect of this action.” (“the Certification”)

10.  P objected to D4’s fees in HCA 1619 and HCA 1339.  BCHK eventually decided to withdraw the claim for D4’s fees in HCA 1619 and HCA 1339 with costs to P, shortly after P’s filed a skeleton on or about 9 October 2023 to contest D4’s fees.

11.  P claims that the representations in the BOCs regarding D4’s legal fees (at HK$12,000/hour, totalling HK$1,002,000)  were fraudulently made, and that Ds were responsible for making the fraudulent representations (“P’s Primary Case”).  In particular, P pleaded that:

(1)  As the Honorary Legal Adviser of BCHK, D4 provided legal advice to BCHK without charging fees. BCHK did not engage D4 as its in-house legal advisor.

(2)  There were no costs incurred by BCHK for work allegedly carried out by D4.

(3)  D4 did not charge BCHK at the rate of HK$12,000 per hour.

(4)  BCHK was unable to produce any documents in support of the costs incurred by engaging D4 as legal advisor in HCA 1339 and HCA 1619 despite well over 1 year has lapsed.  BCHK eventually withdrew the claim relating to D4’s costs.

12.  P’s Primary Case is that BCHK and D4 conspired with D2 and D3 to take advantage of the indemnity costs orders in HCA 1339 and HCA 1619 to include claims of legal fees from D4 which were never agreed, with the intention of deceiving P to pay for costs that BCHK was not required to pay.

13.  P’s Alternative Case is that any purported fees charged by D4 were pursuant to a contingency fee agreement, arrangement or flexible approach which was invalid and unlawful, and Ds conspired to orchestrate and/or participate in the contingency fee arrangement or arrangement between BCHK and D4 with the intent to injure P.

14.  Ds deny that the representations in the BOCs that D4’s alleged legal fees were fraudulently made.  Ds say that D4’s entitlement to legal fees arose from the following circumstances:

(1)  BCHK undertook to pay for the legal fees for all other defendants (save for Hopkins Chan)  in HCA 1619 and HCA 1339.

(2)  In or about March 2020, Rev Lo Hing Choi, the then President of BCHK (“Rev Lo”), invited D4 to be the legal advisor of BCHK in about March 2020.  D4 received the formal appointment letter as BCHK’s Honorary Legal Adviser with effect from 1 May 2020.

(3)  On 14 October 2020, it was orally agreed between D4 and Rev Lo that D4 could charge BCHK for legal services rendered outside of the agreed scope of pro bono services.

(4)  In December 2020, Rev Lo requested D4 to assist in setting up the Committee to handle various court actions included HCA 1619 and HCA 1339, and in about January 2021, D4 was invited to act as the legal adviser of the Committee.

15.  As to the Certification on each of the BOCs, Ds’ case is that there is a typo in the Certification, and the correct version of the Certification should be “the amount claimed in the bill of costs does not exceed [BCHK’s] liability for costs to D4 and [O&P] in respect of this action”.

16.  According to P, the IDs are be divided into three groups:

(1)  ID5 to ID12

These IDs were members of the Committee at the material times.

(2)  ID13 to ID19

These IDs are the 2^nd, 4^th, 7^th, 8^th, 9^th, 11^th and 12^th defendants in HCA 1619.

(3)  ID20 to ID22

(a)  ID20 was the treasurer of BCHK from May 2022 to April 2024. 

(b)  ID21 and ID22 were the internal auditors of BCHK from May 2022 to April 2023, and from May 2023 to April 2024 respectively.

17.  P’s intended claims against IDs are broadly the same as P’s claims against Ds in P’s Primary Case and P’s Alternative Case.  P claims that:

(1)  ID5 to ID12, as members of the Committee, approved the BOCs, which led to the filing of the BOCs.

(2)  ID13 to ID19, as defendants of HCA 1619, confirmed and instructed D3 to file the 1619 BOC, which led to the filing of the 1619 BOC.

(3)  ID20 to ID22

(a)  ID20 and ID21, as treasurer and internal auditor of BCHK when the BOCs were filed, allowed the representations to be made in the BOCs.  P says that the treasurer and internal auditors were responsible to manage and monitor the financial condition of BCHK including money payable to certain persons pursuant to certain agreements.

(b)  ID20 and ID22 signed and submitted the 2023 annual account of BCHK, which did not record any account payable to D4.  There was no account payable to D4 recorded in the financial statement of BCHK for the year ended 31 December 2023.

C.   DISCUSSION

C1.  The Joinder Application

C1.1 The Principles

18.  A plaintiff is prima facie entitled to choose the person against whom to proceed.  The plaintiff’s choice is, however, not conclusive.  It is subject to the power of the Court, among other things, to join additional parties.  The question of joinder of parties is generally governed by Order 15 rule 6 of the Rules of the High Court.  The jurisdiction is entirely a discretionary jurisdiction.[3]

19.  As to whether a new party should be joined by exercising the jurisdiction under Order 15 rule 6, the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them.  While there is no requirement for an applicant to show merits of his case, joinder would be refused if the intended defendant opposing the joinder shows that it is plain and obvious that the plaintiff has no case against him.[4]

20.  As to whether it is plain and obvious that the plaintiff has no case against the intended defendant, the Court would approach the matter as though it had been an application to strike out.[5]

21.  In DLA Piper Hong Kong (a firm)  v Tsoi Chik Sang Lawrence[6], it is stated (footnotes omitted):

“13. It is trite that:

(1)  An allegation of fraud must be distinctly alleged, distinctly proved, and sufficiently particularized.

(2)  A case based on conspiracy must contain the following elements:

(a)  an agreement between two or more persons;

(b)  the means of carrying out the agreement, whether lawful or unlawful, must be set out;

(c)  the intention to injure the plaintiff, whether predominant (in the case of lawful means conspiracy)  or merely an intention to injure (in the case of an unlawful means conspiracy);

(d)  the acts that were carried out pursuant to the agreement and the stated intention; and

(e)  the damage caused to the plaintiff.

14.   In a striking-out application, the Court may strike out a claim if it is plain and obvious that the claimant’s case has no factual basis.”

22.  In order to put forward a claim based upon fraudulent misrepresentation, the following elements must be pleaded[7]:

(1)  a representation of fact made by words or conduct;

(2)  the representation must be made with knowledge that it is or may be false.  It must be wilfully false, or at least made in the absence of any genuine belief that it is true;

(3)  the representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which includes the plaintiff, in the manner which resulted in damage to him;

(4)  the plaintiff has acted upon the false statement; and

(5)  the plaintiff suffered damage by so doing.

23.  A party’s claim should be formulated clearly and cogently in pleadings, and not left to inferences to be drawn from the matters pleaded.  Inferences are matters of evidence and cannot substitute material facts in pleadings. Speculations and conjectures are impermissible in pleadings as the bases upon which inferences are invited to be drawn[8].

24.  Lack of particulars is normally not a good enough reason to strike out a claim.  However, given the serious nature of the allegation of conspiracy and fraud, the Court may strike out such a claim if the highest the pleading can establish is merely “assumption, inference, and speculation of knowledge”[9].

25.  P has brought more than 10 actions against BCHK, its Council Members and/or its volunteers, and all these proceedings concerning Pui Ching Primary School and Middle School (“Pui Ching”).  Various judgments have been made by the Court in those proceedings.  In considering the Joinder Application and the Amendment Application made by P in the Summons, I bear in mind the Hollington principle.  In accordance with the Hollington principle, findings made in a previous judicial decision, which do not amount to issue estoppel/res judicata, are inadmissible in a subsequent case.  However, statements of factual evidence laid out in the previous case would still be admissible in the sequent case.  The principle has been recently stated by the Court of Appeal in Bank of Huludao Co Ltd v Zhongying Int’l Holding Group Limited[10], in which Ng J (giving the judgment of the Court)  said:

“24. The Defendant sought to debar the Plaintiff from adducing the PRC Judgment as evidence in the Action on the basis of what might be called the “Hollington principle”, being the rule arising from the namesake case of Hollington v F. Hewthorn & Co. Ltd [1943] KB 587.

25.  The Hollington principle is well settled.  Briefly stated, a judgment and factual findings of another court or tribunal in earlier proceedings, whether civil or criminal, are inadmissible in subsequent proceedings, unless the party against whom the finding is sought to be deployed is bound by them by reason of an estoppel per rem judicatam: Capital Century Textile Company Limited v Li Dianxiao & Anor [2018] HKCFI 729, per Lisa Wong J at §23; Jin Jiang Investment Limited & Anor v & 深圳市威廉金融控股有限公司 & Ors [2022] HKCFI 378, per Coleman J at §44.

26.  The underlying rationale of the Hollington principle is that it is the duty of a court to form its own opinion on the basis of the evidence placed before it; and that it would not be proper for the court in forming that opinion to be influenced by the opinion of someone else, however reliable that person’s opinion is likely to be.  In so far as the evidence before the later court is the same as the evidence before the earlier court, the later court is in as good a position to draw inferences and conclusions from the evidence.  In so far as the evidence is different, the opinion of the earlier court does not assist the court’s task.  The true justification for the Hollington principle lies in the requirements for a fair trial: Rogers v Hoyle [2013] EWHC 1409 (QB), per Leggatt J (as he then was)  at §93 and §104.

27.  On the other hand, the Hollington principle does not apply to the evidence referred to in an earlier judgment such as the contents of documents or the evidence of witnesses: Capital Century Textile at §29.  Putting it generally, statements or reported statements of the factual evidence before the previous court are not excluded by the Hollington principle: Jin Jiang Investment at §45.”

C1.2  P’s claim against IDs as pleaded in DRASOC bound to fail

26.  At the beginning of this hearing, Mr Chang SC has fairly told the Court that the focus in this appeal is IDs, not Ds.  Mr Abraham Chan SC for Ds and IDs agreed to this.

27.  P’s Primary Case against IDs is based upon fraudulent misrepresentation and conspiracy.  P’s Alternative Case against IDs is based upon conspiracy.  In my view, there are various fundamental problems in these cases, and P’s claim against IDs is bound to fail.

C1.2.1  Fraudulent misrepresentation

28.  First, the misrepresentation claim against IDs is wholly unparticularised. In the DRASOC, at [4] to [6], P pleaded that Ds have made some representations.  However, there is no plea in the DRASOC identifying IDs or any of IDs as the makers of the alleged representations.  There is also no plea identifying when and how the alleged representations were made by IDs.

29.  Second, it is P’s pleaded case that the representations were made through the BOCs.[11] With respect, this plea is misconceived.  I agree with Mr Chan SC that BOCs only represented BCHK’s and other relevant parties’ case on costs in those actions, and were subject to P’s objections and ultimately the judicial decisions made by the Court in taxation.  Bearing in mind the nature of BOCs and the taxation process, BOCs and the contents therein cannot be treated as representations made to P with the intention that the representations would be acted upon by P.

30.  Third, P pleaded that he acted on the representations and incurred time and expenses in investigating on the falsity of the representations and instructing lawyers in challenging BCHK’s entitlement to costs.[12] As submitted by Mr Chan SC, the plea of P acting on the representations is inherently contradictory with the action taken by P, ie incurring time and costs to investigate and challenge the representations.  The principle is trite: “[a] representation may be made to induce a representee to act in one way, but he may act on it in another way.  The representation is then regarded as spent, and a representee who suffers loss in that way has no cause of action”[13].  In the circumstances, the misrepresentation claim made by P in fact cannot get off the ground.   

31.  Fourth, as to ID13 to ID19, and ID20 to ID22, there is no sufficient basis in P’s case as pleaded in the DRASOC in support of IDs’ knowledge of the existence of the BOCs and the representations therein in the first place.  In the absence of this essential element, the misrepresentation claim against these IDs is bound to fail.

(1)  As against ID13 to ID19, it is pleaded at [3C] of DRASOC that the 1619 BOC was filed “upon the instructions and confirmation of” these IDs.  As to when and how the instructions and confirmation were given, no particular is given.  As submitted by Mr Chan SC, there is no basis to infer that ID13 to ID19 knew the existence of the 1619 BOC, or they have read the 1619 BOC.  This is particularly so bearing in mind in P’s case: (a)  D4 was the Honorary Legal Adviser of BCHK (ie D1), not ID13 to ID19; (2)  it was the Committee who approved the 1619 Invoice, not ID13 to ID19.  I agree with Mr Chan SC that the plea in [3C] of RASOC is akin to a plea of a defendant having “authorized” a misrepresentation without particulars, which is “defective and therefore embarrassing and an abuse of process”[14].

(2)  As against ID20 to ID22, it is pleaded in [8C] of DRASOC that they “allowed”, “allowed or condoned” the representations to continue to be made in the BOCs. However, no particular is given.  I agree with Mr Chan SC that this plea is similar to a plea that “the defendants are responsible for all the misrepresentations because they knew that they were being made or had been made but did not correct them”, which is defective, embarrassing and an abuse of process[15].

32.  Fifth, it is trite that fraud must be pleaded distinctly and with the utmost particularity[16]. For the reasons set out in the above, it is plain that the fraudulent misrepresentation claim against IDs as pleaded in DRASOC does not meet this standard.

33.  For the reasons above, I conclude that the fraudulent misrepresentation claim against IDs as pleaded in DRASOC is bound to fail and not arguable.

C1.2.2  Conspiracy

34.  There is a conspiracy claim in P’s Primary Case (“False Claim Conspiracy”), and there is another conspiracy claim in P’s Alternative Case (“Contingency Fee Conspiracy”).  There are various fundamental problems in these conspiracy claims.

35.  First, in respect of the requirement of pleading a conspiratorial agreement with sufficient particulars, in each of the conspiracy claims, the alleged conspiratorial agreement is wholly unparticularised.  For both conspiracy claims, it is not known when the alleged conspiratorial agreements were formed.  For the False Claim Conspiracy, it is not known whether P is alleging “unlawful means conspiracy” or “lawful means conspiracy”.  In the former case, it is not known what the unlawful means are.  In the latter case, it is now known whether P is alleging that IDs had a predominant motive to injure.  Merely alleging that IDs conspired together to defraud[17] would not be sufficient.  See Polyline Development Ltd v Ching Lin Chuen & Ors[18], in which DHCJ Manzoni SC said:

“108.   In the statement of claim there is no pleading of the conspiratorial agreement between each of D1, D2, D3, D7, D12, D13, D14, D15, D16, other than the mere assertion that they conspired together, or as between 2 or more of them.  There is no suggestion as to when the agreement was reached, or between whom or how it was reached, and there is no indication of the nature of the agreement other than that it was to “defraud Polyline and/or misappropriate the Schedules 1 and 3 lots and to conceal such fraud and/or misappropriation and the proceeds thereof from Polyline”.  In my view that is not sufficient.

109.   The unlawful means alleged are pleaded, but without a pleading of the nature of the agreements pursuant to which those unlawful means were undertaken, the pleading of conspiracy must fail.”

36.  Second, in respect of the element of intention to injure:

(1)  In relation to the False Claim Conspiracy, for the reason set out in [28] above, as there is no plea in the DRASOC identifying when and how the alleged representations were made by IDs, there is no basis upon which it can be said that IDs have conspired together with an intention to injure P.  Further, for the reason set out in [31] above, there is no basis to say that ID13 to ID19, and ID20 to ID22, have an intention to injure P.

(2)  In relation to the Contingency Fee Conspiracy, it seems that the element of intention to injure is based upon (a)  the knowledge of IDs regarding D4’s flexible approach to fees with D1[19]; and (b)  the claim that IDs “knew or ought to have known” that any purported fees charged or received by D4 were pursuant to a contingency fee arrangement, which shall be invalid and unlawful[20]. However, in the DRASOC, there is no material fact(s)  based upon which an inference of such knowledge can be properly drawn.

37.  Third, in respect of the element of overt act(s):

(1)  P has to plead at least one overt act which is the act of all the alleged conspirators or, failing that, a number of overt acts which include at least one act on the part of each conspirator.  And the overt act(s)  pleaded must be such as to show: (a)  that the conspiratorial agreement alleged against the IDs had been entered into by each and evert one of them; (b)  that the agreement, and not merely the intention of one person alone, was implemented; and (c)  that such implementation caused the damage complained of[21].

(2)  In ADS, Bokhary JA (as he then was)  said at 272H-273B:

“Only one defendant, the fifth, is alleged to have uttered the statements said to be misrepresentations. The making of misrepresentations by one person does not require any agreement; and it does not show that any agreement has been made. That being so, failure to correct them does not require any agreement; and it does not show that any agreement has been made.

……

In the result, not a single overt act has been pleaded.  The allegations of knowledge, common purpose and intention cannot alter that or render it harmless.  They are not acts. ……”

(3)  Regarding the False Claim Conspiracy, P’s pleaded case is that the representations in the BOCs were made by D1 and D4.[22] There is nothing in the DRASOC alleging that IDs or any of them had provided false information to D3 and to orchestrate false or invalid claim against P.  There is no overt act allegedly committed by IDs or any of them.

(4)  Regarding the Contingency Fee Conspiracy, it is pleaded that IDs “made, orchestrated and/or facilitated” a claim against P for costs as per the invoices[23]. This plea is wholly unparticularised and cannot be a proper plea for an overt act.  Further, in relation to ID20 to ID22, there is nothing in the DRASOC links up the financial statement or report prepared or approved by them to the BOCs.  There is no plea alleging that they had knowledge of or any involvement in the alleged conspiracy in the preparation or approval of the BOCs.  There is simply no overt act by these IDs in the DRASOC.

38.  For the reasons above, in my judgment, both the False Claim Conspiracy and the Contingency Fee Conspiracy are bound to fail.

C1.3  Conclusion on the Joinder Application

39.  By the reasons as stated in the above, I am of the view that there is no case against IDs or any of them in the DRASOC.  In the premises, the Joinder Application must be refused.

C2.  The Amendment Application

40.  The amendments in the DRASOC are proposed on the premise that the Joinder Application would be allowed and IDs would become defendants in these proceedings.  Since I have ruled against P in the Joinder Application, there is no reason to allow P to amend the Amended Statement of Claim in the way as shown in the DRASOC.  I would also dismiss the Amendment Application.

C3.  Costs of the appeal

41.  For the reasons above, I would dismiss the appeal and affirm the Master’s decision.

42.  Both Mr Chang SC and Mr Chan SC have agreed that costs should follow the event, with a certificate for two counsel.

43.  Ds and IDs seek indemnity costs.  For the reasons set out below, I would allow this application.

44.  The principles concerning indemnity costs are well established[24]:

(1)  It is generally necessary for a party seeking an order for indemnity costs to demonstrate some “special or unusual feature” in the case.

(2)  Indemnity costs is not only ordered where the paying party’s conduct lacks moral probity or deserves moral condemnation for which the Court wishes to express disapproval. Conduct which falls short of that can be so unreasonable as to justify an order for indemnity costs.  But such conduct would need to be unreasonable to a high degree.  Unreasonable in this context does not mean merely wrong or misguided in hindsight.

(3)  Ordinarily, merely pursuing a weak claim would not justify indemnity costs.  On the other hand, maintaining a claim that one knows, or ought to know, is doomed to fail on the facts and on the law, is conduct that is so unreasonable as would justify indemnity costs.

(4)  Ultimately, what the receiving party must demonstrate is something in the conduct of the action or other circumstances of the case that “takes it out of the norm” which warrants an order for indemnity costs.

45.  In my view, the fundamental problems in P’s case against IDs based upon fraudulent misrepresentations and conspiracy are obvious to any reasonable man.  Without any proper basis and evidence, P chose to put forward and to pursue such claims against IDs, which are claims involving serious allegations of fraud and conspiracy.  I regret to say that the Summons is an attempt made by P, with an intent to put unreasonable pressure on and to harass IDs.  In the circumstances, I am of the view that an order of indemnity costs is justified.

D.   DISPOSITION

46.  I dismiss the appeal.

47.  Costs of the appeal be to Ds and IDs forthwith on an indemnity basis, with a certificate for two counsel.  Those costs be summarily assessed on paper without an oral hearing.  There be leave to Ds and IDs to lodge and serve a bill of costs (limited to 3 pages)  within 7 days, and leave to P to lodge and serve a list of objections (limited to 3 pages)  within 7 days thereafter.

48.  Lastly, it remains for me to express my gratitude to all counsel for the helpful assistance rendered to this Court.