TUNG KA HUNG AND OTHERS v. WAN KIN CHUNG DANIEL AND OTHERS

HCCW726/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO.726 OF 2002

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REASONS FOR DECISION

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1. This is the petitioners' application under Order 62, rule 35 for review of Master de Souza's decision on 22 October 2003. On such an application I may exercise all such powers and discretion as are vested in a taxing master in relation to the subject matter of the application.

2. The petitioners relied on four grounds of objection :

(a) the hourly rate allowed for Mr Sherman Yan is excessive;

(b) the hourly rate allowed for Ms Julie Leung is excessive;

(c) the amount allowed for counsel fee paid to Ms Teresa P.C. Wu is excessive; and

(d) the amount allowed for counsel paid to Mr Alfred H.H. Chan is excessive.

3. Mr Ng for the petitioners has referred me to the decision of the Court of Appeal in England, Kawarindrasingh v. White [1997] 1 All ER 714. I believe it is now settled that the approach to this kind of appeal should be no different from other interlocutory appeals. In other words, the principles which govern this appeal are those stated by Lord Atkin in Evans v. Bartlam [1937] AC 473. In the words of Lord Atkin at page 478 :

" ... His own discretion (referring to the judge's discretion) is intended by the rules to determine the parties' right, and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the master, but he is in no way bound by it. ..."

4. On an appeal again the quantum of fees allowed by a taxing master, the master's view, in my opinion, deserves more than the usual weight. Afterall, they deal with taxation on a regular basis.

5. The first two objections can be taken together. They are based on the fact that in a related action, namely, HCCW1193/2002, on an application for security for costs, Mr Yan for the 1st to 5th and 8th to 11th respondents stated that his hourly rate was $2,900 and that the hourly rate for Ms Leung was $2,700. Now here, the learned master allowed Mr Yan $3,200. In the case of Ms Leung he allowed $3,000. In the case of Mr Yan, his hourly rate was reduced on a review by him from $3,500 to $3,200. And, in dealing with the argument that the learned master should have regard to what Mr Yan said his fees were in the other proceeding, as well as what he said was the appropriate fee for solicitors acting for the opposing party in the other proceedings, the learned master had this to say (and I quote from his ruling) :

"Again, I think it is important to bear in mind and to state that I did not consider it particularly helpful to refer to the affidavits and particularly to Mr Yan's own view of someone else's charges. Each case has to be considered on its own merits."

6. As I have said, he had reduced it to $3,200 and he did so being fully aware of the extensive involvement of Mr Yan in the case itself.

7. The respondent in his skeleton submission explained that this proceedings are more complex and that the instructions were received on an urgent basis and that the whole group of companies were involved, whereas in the other proceedings, HCCW1193/2002, the issues involved were less complex, less pressing and it was just an ordinary petition under sections 168A and 177(1)(f) of the Companies Ordinance. On the material before me, I am not persuaded that I should take a different view from the learned taxing master. There is nothing which is exceptional about the hourly rates which were allowed to Mr Yan and Ms Leung.

8. I turn to consider the third objection which related to the fees paid to Ms Wu. Mr Ng argues that it should be reduced by a further $5,000. I am afraid there is really nothing before me which shows that the fee which was allowed on taxation in relation to Ms Wu should be further reduced. I have looked at her skeleton submission which was produced for the hearing on 22 August 2002 and on the basis of what was required to be done by her and what actually she did, I believe that the fee which was allowed to Ms Wu to be fully justified.

9. Lastly, I turn to the fee paid to Mr Alfred H.H. Chan. There are two points here, first, on the quantum. It is suggested that the fee charged was too high and that it should be reduced by $20,000. I have seen Mr Chan's skeleton submission for the hearing on 22 August 2002. On the basis of the work that he had to do, I do not believe that it would be right to require the brief fee to be further reduced. Mr Ng made the point that Mr Chan was also required on the same occasion to deal with HCA2455/2002 where there was an application to stay the execution of the judgment which was obtained on 26 July. But as Mr Yan has explained, Mr Chan was given a separate fee in relation to that action. So on that basis, Mr Ng did not pursue the point. Again, on the material before me, I am of the view that the fee allowed on taxation was fully justified.

10. The other point that was made by Mr Ng in relation to Mr Chan's fee was the apportionment.

11. At the hearing on 22 August 2002, Mr Chan was involved with not just this petition which is HCCW726/2002, but also HCCW727/2002 and the fee that was agreed was a global fee covering both sets of proceedings. That being the case, Mr Ng contended that the fees should be apportioned equally between the two sets of proceedings. The learned master, however, apportioned 70% of the fee to this proceeding which is HCCW726/2002 and he had given reasons in his ruling explaining which he did so - he went into the matter quite elaborately. He said in his ruling :

"Clearly, by looking at the table which sets out two applications on each side under HCCW726 and HCCW727, it is not helpful because, as pointed out by Mr Yu, it does not indicate the amount of work that counsel has to undertake.

Those are the matters that I have taken into account when I allowed the amount for counsel's fees under 83 and in adopting the 30 per cent/70 per cent division. I do not consider that 50/50 per cent division is appropriate in this case.

In coming to this decision, obviously, my attention has been drawn to the skeleton submissions supplied by Mr Yu for the purpose of today's review, and I have also been alerted to the fact, as I was on the last occasion, of the disparity in the brief granted to counsel which clearly reflected the amount of work to be done."

12. Again, I have no reason to doubt that the decision arrived at by the learned master was the correct one. I have looked at the skeleton submissions and I can see why a higher portion of the fee were apportioned to this action.

13. So, for the above reasons, this application is dismissed.