LEE YIN KEUNG JACKY v. LILY FENN & PARTNERS (A FIRM)

HCMP 63/2022

[2026] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 63 OF 2022

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D E C I S I O N

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Introduction and Background

1.  By a Decision dated 3 September 2025 ([2025] HKCFI 3858 (“the Decision”)), I dismissed:

(1)  the Notice of Appeal to a Judge in Chambers Against Master’s Decision dated 3 December 2024 (“NOA”)  whereby the Defendant (“D”)  sought to appeal against the Ruling and Order of Master Hui (“the Master”)  of 20 November 2024; and

(2)  D’s Summons filed on 6 June 2025 (“the Amendment Summons”)  for leave to amend the NOA.

2.  Essentially, the NOA was dismissed (without any substantive determination)  because I took the view that if D was aggrieved by any decision of the Master, as a taxing master in these taxation proceedings, the proper channel for redress after taxation was to firstly, seek a review by the same taxing master and then a review by a judge (under O.62, rr.33-35 of the Rules of High Court, Cap. 4A (“RHC”))  and not by appealing to a judge (under O.58 of RHC)  as D did.  As I held that it was misconceived for D to issue the NOA, it followed that the Amendment Summons should also be dismissed.  However, I did also consider the Amendment Summons on the merits and held that it was unmeritorious and should also be independently dismissed.  The Decision should be read in full to understand this Decision on Costs.  For convenience and ease of reference, save as otherwise indicate herein, I shall continue to adopt the same abbreviations and definitions as in the Decision.

3.  At §29 of the Decision, I made a costs order nisi that D is to pay to P the costs of the NOA and Amendment Summons, with certificate for two counsel, to be taxed if not agreed (“the Costs Order Nisi”).

4.  By Summons dated 17 September 2025 (“Variation Summons”), D seeks to vary the Costs Order Nisi to an order that there be no order as to costs for both the Amendment Summons and the NOA and for the Variation Summons be disposed of on paper.

5.  By consent, an Order was grant for the Variation Summons be disposed of on paper with directions given for lodging of submissions on 17 October 2025.

Disposal

6.  In respect of costs of the Amendment Summons, in gist, D submitted that as: (1)  this court had dealt with the argument on jurisdiction on the merits and referred to cases in favour of D’s jurisdiction point, even though D’s jurisdiction point was not ultimately decided in D’s favour, it was not found to be not reasonably arguable; and (2)  the court was bound to inquire into its own jurisdiction (relying on the Court of Final Appeal’s decision in Hip Hing Timber Company Limited v Tang Man Kit & Anor (2004)  7 HKCFAR 212 at §§25, 30-35), whether or not the parties raised it or not; thus the court did proceed as if the Amendment Summons was allowed.  D therefore submitted that the costs order should reflect the reality of how D’s jurisdiction point was actually dealt with and costs should be awarded to D.

7.  With greatest respect to the submissions of D’s counsel, I cannot see how by dealing with D’s jurisdiction point substantively and having found it to be unmeritorious and dismissing the Amendment Summons, it can be said that in reality the Amendment Summons was allowed.  The cases which D relied concerning D’s jurisdiction point, I held either was not correctly decided or was not helpful or could not advance D’s case: see Decision, §§25(6)  and 27(6).  Whilst I did not expressly state that D’s submissions were not reasonably arguable, having held that the Amendment Summons had no merits and should be dismissed, effectively, that was what I held.

8.  As to the court being bound to inquire into its own jurisdiction, this was done as a result of this court’s own raising of the “jurisdiction point”, which I clearly stated at the outset of the Decision, was a different one from that raised by D in the Amendment Summons.  The issue I raised was whether I had jurisdiction under O.58 of RHC to consider the “appeal” against the Master’s Ruling and Order: see Decision, §§3 and 27.  The jurisdiction point raised by the Amendment Summons by D was whether the Master had jurisdiction to determine issues of liability, in particular the scope of the retainer and as a result this court had jurisdiction to hear the NOA: see Decision, §17-25.  I accept if D was correct and the Master did not have jurisdiction, then the Master’s Ruling and Order was a nullity such that I would have no jurisdiction to determine the NOA on its merits.  However, the jurisdiction point that I raised was an independent basis for not hearing the NOA on its merits.

9.  Besides, the Amendment Summons could equally and was as a matter of fact also dismissed as a result of the dismissal of the NOA raised by myself, even without determination of D’s jurisdiction point.  In the circumstances, where I considered that the NOA was misconceived and should be dismissed with costs to P, the costs of the Amendment Summons should similarly follow the costs order in respect of NOA.

10.  In respect of the costs of the NOA, D submitted that if the costs of the Amendment Summons were to be awarded to D and the costs of the NOA was awarded to P the overall costs should be no order as to costs.  For the reasons explained above, I consider that costs of the Amendment Summons should be awarded to P.

11.  D also submitted that bearing in mind the jurisdiction point was raised by this court’s own initiative, as a matter of fairness, overall there should be no order as to costs.  However, bearing in mind that the NOA was issued by D, it is incumbent upon D to satisfy itself of the proper appeal procedures before it was taken out, and notwithstanding the jurisdiction point was raised by this court 2 days prior to the hearing, D made no concession nor offered to withdraw the NOA but the matter had to be fully argued.  In these circumstances, it is fair that D should pay the costs of NOA following its dismissal.

12.  In all, notwithstanding the submissions of D, I see no reason to vary the Costs Order Nisi which is now made absolute.

13.  In P’s Skeleton Submissions, it was submitted that there should be an order for summary assessment and immediate payment of costs of the NOA and Amendment Summons as well as this variation application. P submitted that as D had applied for a variation of the Costs Order Nisi, the costs order remains a matter to be determined and the court is entitled to revisit the question of costs.

14.  On the other hand, D submitted that it is not open to P to apply to vary the Costs Order Nisi by seeking summary assessment and immediate payment of costs having not applied to vary within 14 days from the handing down of the Decision.  D referred to Tsang Chiu Yip v Ho Kwok Leung (unrep)  HCPI 305/2013, 8 August 2016 per DHCJ Marlene Ng (as she then was)  at §10 and PCCW-HKT Telephone Limited v Telecommunications Authority (unrep)  CACV 274/2003, 7 September 2004 per Ma CJHC (as he then was)  at §11.  Given that summary assessment and payment forthwith were never sought at the hearing below nor did P make any proper application to vary, and in any event, the costs sought involving two counsel are not insubstantial which no doubt will be contested and D intends to appeal the Decision to the Court of Appeal, I will not accede to P’s application to vary the Costs Order Nisi by ordering summary assessment and payment forthwith.

15.  As for the costs of this application, I see no reason why this should not follow the event.  D should pay to P the cost of the Variation Summons to be summarily assessed, if not agreed.  P has lodged a Statement of Costs for the Variation Summons.  I hereby direct D to lodge any objections to P’s Statements of Costs within 7 days from the handing down of this decision and there will be summary assessment of P’s costs by me on paper thereafter.