KIM SIE JOONG AND ANOTHER v. NG CHEUK NGON AND OTHERS

HCA 552/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 552 OF 2002

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R U L I N G

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1. The Plaintiffs applied to vary the costs order nisi made by me on 30 June 2003.

2. It is clear from the submissions of counsel both at the original hearing and on this occasion that there are fundamental issues of factual dispute and serious allegations regarding credibility in relation to matters both before and after the commencement of the action. Although some activities appear on their face to be questionable, I remind himself that I cannot and should not make any assessment upon affidavit evidence.

3. The original hearing covered a period of 3 days and arose out of 2 summonses which over-lapped to a substantial degree in both subject-matter and content.

4. I ordered that the costs be reserved to the trial judge on the basis that it could only be after hearing all the evidence that a full assessment could be made of the validity of the applications under the 2 summonses. The Plaintiffs now argue that the trial judge would not be in a position to appreciate the full extent of the argument before me.

5. Upon further reflection and having had the benefit of hearing from both counsel, I accept that I may have more insight into the background and arguments leading to the order under the 2 summonses. In the circumstances I am prepared to vary the costs order nisi made by me on the last occasion.

6. Each side urges upon me that costs should be in their favour. The applications were essentially for discovery and preservation of assets pending trial. In the course of submissions most of the issues were resolved by consent, there being a fair degree of give and take on each side involved in reaching that consensus. The only matters not agreed upon involved areas where I am satisfied each side had cause to argue as they did having regard to their respective cases. As it so happens, those arguments occupied the major part of the hearing dates.

7. I remain of the view that it not appropriate to delve behind the affidavits to draw inferences based upon conflicting affidavit evidence. In as much as these 2 summonses are an integral part of the matters in dispute, I do not think that they should be treated differently from the main action.

8. I therefore vary the order on costs to the extent that the costs of the 1st and 2nd summonses are to be costs in the cause. The costs of and occasioned by the adjournment on 30 December 2002 shall be to the Plaintiffs in any event to be taxed and paid forthwith. The costs of this application shall be costs in the cause.