Kee Chan Hing v. Leung Fuk Chuen and Others

DCCJ 4959/2014

[2020] HKDC 1256

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4959 OF 2014

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Before: His Honour Judge Andrew Li in Chambers (Open to Public)

Date of Hearing: 28 September 2020

Date of Decision: 28 September 2020

Date of handling down Reasons for Decision: 31 December 2020

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REASONS FOR DECISION

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INTRODUCTION

1.By a summons dated 26 June 2020 the plaintiff applied for leave to appeal to the Court of Appeal (“the Summons”) against the Judgment handed down by me on 29 May 2020 (“the Judgment”).

2.At the end of the hearing of the Summons on 28 September 2020, I dismissed the application with costs in favour of the various defendants.  I said I would provide the reasons for my decision in due course.  Here are the reasons. 

BACKGROUND

3.Under the Summons, the plaintiff sought leave to appeal against the Judgment on the grounds that:-

(i)  as per the 9 grounds set out in the Draft Notice of Appeal attached to the Summons (“Draft Notice of Appeal”), that it has a reasonable prospect of success; and

(ii)  further or in the alternative, there is some other reason(s) in the interests of justice that this appeal should be heard.

4.In the Summons, the plaintiff also applied for a stay of execution. 

5.The defendants opposed to the plaintiff’s application. 

6.The background and the disputed facts of the case had been summarized in Part B of the Judgment and the parties’ respective cases under Part C thereof.  I do not wish to repeat them here.     

7.In short, I found in the Judgment that the plaintiff had failed to establish his claim based on “Boundary 1” in the plan annexed to the Amended Statement of Claim (“ASOC”) against the defendants.  I made an order that the plaintiff’s claim be dismissed with costs in favour of the defendants.

PROPOSED APPLICATION FOR EXTENSION OF TIME AND/OR ADJOURNMENT

8.Less than two weeks before the hearing of the Summons, the plaintiff’s solicitors, who were newly appointed by the plaintiff after the Judgment was handed down (and who did not represent him at the trial of this action), wrote to the Court on 16 September 2020, indicating that they intended to take out a summons to apply for an adjournment/extension of time for the hearing of the application for leave on behalf of their client.

9.On 17 September 2020, this court wrote to the plaintiff’s solicitors and refused the application and directed the hearing of the Summons to proceed as scheduled.

10.According to the letter written by the plaintiff’s solicitors to the defendants’ solicitors on 10 August 2020, the main reason of why they wished to ask for an adjournment of the hearing was that they had only recently come into the picture.  Indeed, a notice of change of solicitors was only filed on 26 June 2020.  Since then, they alleged that they had been trying to obtain the papers and files of the case from the plaintiff’s former solicitors (Messrs Francis Kong & Co) who was only able to provide some of the papers and files to them on 7 August 2020 only. This was despite their repeated requests and demands.  They said that this would only leave them with about 6 weeks from that date until the time for them to lodge the submissions and lists of authorities for the hearing of the Summons. Therefore, they claimed that they would not have sufficient time to prepare for the case.  They also claimed that part of the reasons was due to 3^rd wave of the coronavirus which had disrupted their business’s operation and that of the others in Hong Kong in July and August 2020. 

11.Those seem to be the only “reasons” which the plaintiff’s solicitors were able to put forward as a basis for the proposed adjournment. 

12.In my view, the plaintiff’s alleged lack of time to prepare for the leave to appeal application must be seen in the light of the following dates and events:-

(i)  On 29 May 2020, this court handed down the Judgment;

(ii)  On 26 June 2020, the plaintiff filed a notice of change of solicitors and took out the Summons;

(iii)  On 3 and 31 July 2020 respectively, the plaintiff served upon the 1^st defendant (“D1”), the 2^nd defendant (“D2”), the 3^rd defendant (“D3”), the 4^th defendant (“D4”), the 5^th defendant (“D5”), the 6^th defendant (“D6”) and the 7^th, 8^th and 9^th defendants (“D7-D9”) the Summons;

(iv)  On 10 August 2020, the plaintiff by way of open letter indicated for the first time that they needed more time to prepare for the Summons;

(v)  On 26 August 2020, the plaintiff by way of open letter pressed the defendants for an agreement to adjourn the hearing for the Summons or else they threatened that a “time summons” would be taken out; and

(vi)  Between 2 and 11 September 2020, the plaintiff and the defendants engaged in various without prejudice correspondence on the above matters.

13.In my judgment, the lack of time for the preparation is entirely a matter of the plaintiff’s own making. I consider the delay of the plaintiff in appointing his new firm of solicitors to take over the case was the main reason why it had deprived them sufficient time to prepare for the Summons.  However, this in my view is not a valid reason to ask for an adjournment of the hearing. 

14.Ms Astina Au, counsel who represented the plaintiff at the hearing (who incidentally was only instructed to appear the week before the hearing itself), tried to explain to the court that the plaintiff’s solicitors had only received instructions to act for the plaintiff for the appeal 2 days prior to the deadline of filing of the application for leave.  However, no explanation was given by the plaintiff of what had caused his delay in instructing them.  Then 2 days after they had been instructed, ie on 26 June 2020, the plaintiff’s solicitors took out the Summons. 

15.Ms Au has gallantly tried to explain to the court the enormous difficulties faced by her instructing solicitors in obtaining the papers and files of the case from the plaintiff’s former solicitors. 

16.She set out a detailed timeline of how her instructing solicitors had only managed to get most of the papers and files by the end of July only. 

17.However, as Ms Au has rightly accepted, by this time, the plaintiff’s solicitors would have sufficient papers to work on the case.  In any event, from the date of issue of the Summons on 26 June 2020 to the date fixed for the hearing of the Summons on 28 September 2020, there was a 3 months’ gap.  Even given the initial difficulties experienced by the plaintiff’s solicitors in obtaining the papers and files from the plaintiff’s former solicitors, I am of the view that the plaintiff’s solicitors would still have ample of time to prepare for the hearing from the end of July onwards when they managed to obtain most of the documents. 

18.In any event, the plaintiff accepted that, by 6 August 2020, they had received 20 lever arch files including “pleadings, expert reports and joint statement of experts” from the plaintiff’s former solicitors.  Thus, by this time, the plaintiff’s solicitors have essentially had all they needed to work on the draft grounds of appeal. 

19.I note however that up to this stage, no attempt had been made by the plaintiff to obtain either the written transcript or the audio recording of the proceedings (the latter can be transferred and stored in compact disc format and can be provided to the parties upon application and payment of fees and undertaking to the court for its usage).  As can be seen from the proposed grounds of appeal, none of the grounds stated therein could be remotely connected with what actually took place at the trial.  It is plain to anybody who read the document that the plaintiff’s solicitors had tried their best to “re-construct” what happened at the trial from what has been stated in the Judgment, without going through the evidence given by the witnesses and experts during the trial.

20.Given the above, I do not accept the reasons set out by the plaintiff’s solicitors in their letter to the court on that they needed time to consider “all the relevant documents in the trial bundle as well as taking instructions from and discuss with (their) client and trial counsel for the Plaintiff”. 

21.The plaintiff had plenty of time to do that if he wanted to even after instructing his present solicitors.  It is obvious to me that he did not do so and simply assumed that the court would grant him such an adjournment that he was intending to seek for. 

22.In any event, as Mr Mak for D1 to D3, D5 & D6 has rightly pointed out in his submissions, contrary to the plaintiff’s indication and the letter dated 26 August 2020, no time summons had been taken out prior to the hearing of the Summons.  Thus, there was no formal attempt to seek for the extension of time for leave to appeal out of time.  No such time summons in fact had been taken out up to the date of the hearing of the Summons as the application for leave to apply must be lodged on or before 26 June 2020 pursuant to order 58 rule 2(4)(b) of the Rules of the District Court, Cap 336H. 

23.For the above reasons, I refused the proposed application for the adjournment or extensions of time as indicated by the plaintiff’s solicitors in their letter dated 16 September 2020.

LEAVE TO APPEAL

The law

24.Under Section 63A (2) of the District Court Ordinance, Cap 336 (“DCO”), leave to appeal shall not be granted unless the court is satisfied that:-

(i)  The appeal has a reasonable prospect of success; or

(ii)  There is some other reason in the interests of justice why the appeal should be heard.

25.As stated by Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 at §17, “reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable.”

26.Therefore, the applicable test should be whether the plaintiff proposed the appeal herein has a reasonable prospect of success.

Proposed grounds of appeal

27.At the outset of the hearing, Ms Au for the plaintiff informed the court that the plaintiff no longer relied on the “estoppel” point which can be found at §5 of the notice of appeal and §31 of the plaintiff’s written submission.  However, she told the court that the plaintiff still sought for leave to appeal and stay of execution.

28.Upon the court’s enquiries as to whether any costs which plaintiff had been ordered to pay under the Judgment has been paid to any of the defendants at the date of hearing of the Summons, Ms Au confirmed that none of the costs had been paid. 

29.Upon taken instructions from her client, Ms Au confirmed that they were no longer pursuing the stay of execution application.

30.For the other grounds of appeal, Ms Au made 2 short points in relation to what she would call as “two critical pieces of evidence”.  They are:-

(1)  As the dimension and area marked on the 1992 Assignment Plan consisted of two sets of information, then whether a plan is obviously inconsistent should not be solely determined by whether this expressly marked for the purpose of deviation only.  Where there are other indicators pointed to the unreliability of it, then the court should also consider that the indicated acreage should be yielded.  She relied on a passage by Bridge LJ in Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 at 1475F where the learned judge stated the following:-

“When a conveyance plan which is said to be for the purpose of identification only shows a boundary line which differs in detail from some physical feature on the ground which the conveyance otherwise indicates as the intended boundary line, it is clear that he latter prevails over the former.  Similarly, where the conveyance shows clearly that a certain acreage is intended to be conveyed, but the adoption of a boundary from the plan “for the purposes of identification only” would leave only a reduced acreage, the boundary on the plan must yield to the indicated acreage.”

(2)  The fact that all the subsequent documents consistently referred to the subject land as being of 140 sq m and that the chart on Trial Bundle [C/593] which set out the history of the plaintiff’s lot, when the rectification deed changed the description of the Remaining Portion of Section D of Lot 25, from 0.09 acreage – 140 sq m to 224.2 sq m, there is no dispute that the actual area of these two descriptions are the same.  With that specific opportunity to correct the information, nobody disputed the remaining plot should be bigger than what it described. Therefore, according to the plaintiff, this is inconsistent with the holding and finding made by the court at the trial. 

31.I have no hesitation to reject the plaintiff’s reliance on the above passage found in Wigginton. 

32.As pointed out by Mr Mak for D1 to D3, D5 & D6, that case involved with a plan for an identification of property standing on its own.  He submits that what Ms Au has quoted Lord Bridge in that case has ignored what was actually being held and found by the court as reported under the headnote of the report itself on p1463:-

“Held, allowing the appeal, that providing a plan did not conflict with explicit description in the parcels, the fact that it was said to be “for the purposes of identification only” did not exclude it from consideration in order to solve problems left undecided by the explicit descriptions in the parcels; that the court was entitled to look at the indications on the plan of the location of the boundary for the purpose of identifying which parcel was intended to be included in the 1921 conveyance; that the description of the parcels in the 1921 conveyance taken in conjunction with the plan provided sufficient material to conclude that the disputed land had not been included in the 1921 conveyance to M and, accordingly the plaintiffs were the legal owners of the disputed land (post, pp 1473H-1474A, G-H, 1475C-D, 1476C)”

33.Buckley LJ who gave the main judgment of the court also stated the following:-

“To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties’ intention the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being “for identification only,” it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be “for the purposes of identification only” does not appear to me to exclude it from con-sideration in solving problems which are left undecided by what is explicit in the description of any parcel.”

34.With respect to Ms Au, that was exactly what I was trying to do in the Judgment.  As pointed out by Ms Chan for D4, the fallacy of the plaintiff’s case as advanced by Ms Au on his behalf cannot tell us where we can find the location of the land.  If the plaintiff relied on 140 sq m only, it does not tell us how to locate the land on the ground.  The textual description is nowhere in the body of the assignment nor was it in the schedule.  Therefore, that passage by Lord Bridge in Wigginton simply does not help.

35.As Ms Chan in her written submissions has further pointed out, the present land boundary dispute turned on 3 key questions: first, the proper construction of the Parcel Clause in the 1992 Assignment; second, with the Parcel Clause properly construed, which set of the conflicting information on the scaled 1992 Assignment Plan should prevail and; third, in the light of the rulings of the aforesaid 2 questions, the court would determine whether the parties’ respective land boundaries (for D4, the surrounding unleased land) are in conflict and whether there is any encroachment on the plaintiff’s lot (ie Issue 3): See §47(3) of the Judgment.  The first 2 key questions have been formulated/subsumed as Issue 1 and Issue 2 for determination by the court: See §47(1) & (2) of the Judgment.  Once these 3 key questions are determined, the other issues should follow. 

36.The above were the exact issues defined by the court and what I tried to resolve by the findings I made in the Judgment. 

37.Thus, seeing the case in such a light, the plaintiff’s grounds of appeal can loosely be classified into 2 groups, namely:-

(i)  Grounds 4 to 7 and 9; and

(ii)  Grounds 1 to 3 and 8

Grounds 4 to 7 and 9

38.The subject matter of Grounds 4 to 7 and 9 mainly concerns the question of construction of the Parcel Clause ie Issue 1 and Issue 2.  Under those Grounds, the plaintiff alleges that the court has erred in:-

(i)  accepting the location and boundary of the Pink Portion as shown on the 1992 Assignment as accurate (Ground 4);

(ii)  taking the balancing exercise in that too much weight was given to the Government lease, the deed poll and rectification plans, and the new Grant plans for Lots 55, 56 and 57 but insufficient weight to the 1992 Assignment Plan (Ground 5[1]);

(iii)  tilting the balance in favour of the location and boundary of the Pink Portion as shown in the 1992 Assignment (Ground 6);

(iv)  construing the Schedule to the 1992 Assignment by giving too much weight to the location and boundary of the Pink Portion as shown in the 1992 Assignment Plan (Ground 7); and

(v)  giving insufficient weight to the extrinsic materials relied upon by the plaintiff (Ground 9).

39.I find the above Grounds contain no merits at all.  With respect to Ms Au and the plaintiff’s solicitors, the formulation of those Grounds have indicated a lack of understanding of the issues involved in the trial.

40.It was common ground that the 1992 Assignment Plan consists of 2 conflicting sets of boundary information.  To consider which set shall prevail over the other is primarily dependent upon the proper construction of the Parcel Clause ie Clause 1 of the 1992 Assignment viz. what parcel of land was intended to be passed and what was passed.

41.As a matter of law, the correct starting point is that one must always begin with construction of the entirety of the 1992 Assignment and the 1992 Assignment Plan in order to ascertain “what the parties intended to be passed under the document and what is “passed”.  SJ v Wing Lung Wai Community [1999] 3 HKC 580 at §21 (§§71, 97, 128 & 174).  The court also disregarded the plaintiff’s subjective belief and self-serving statements (they were also held as inherently improbable) when ascertaining the parties’ intention as at the time of the conveyance transaction (§§56-57).

42.In the present case, I consider I had correctly ruled that the description of the parcel of land passed under the 1992 Assignment “as shown and coloured Pink on the Plan annexed hereto” in the Schedule referred to in Clause 1 of the 1992 Assignment is clear and definite (§§ 22-24 & 101).  I emphasized that “140 sq m (about)” was not mentioned anywhere other than in the textual description in the Assignment Plan (§129) and that the Schedule did not mention the size or the dimensions of the plaintiff’s lot (§98).  I accept D4’s submissions that this ruling is the outcome of the correct application of the legal principles on construction in the context of land boundary dispute: SJ v Wing Lun Wai Community, supra; Chadwick v Abbotswood Properties Ltd [2005] 1 P&CR 10 at p 150 per Lewison J); Yam Yun Fai v Yip Siu Hung [1992] 1 HKLR 346 at 349 (per Bokhary J as he then was); Harvest Rise Development Ltd v Ling Yau Yung [2002] 2 HKLRD 378 at §27 (Ma J as the CJ then was).

43.The Parcel Clause as properly construed by the court will not leave the property undefined despite the conflicting boundary information in the 1992 Assignment Plan.  As emphasized by me in the Judgment, the law recognized that:-

(i)  when resolving a boundary dispute, the land grant documents and survey materials including the Government Lease, the New Grant[2]plans, the delineation on the DD sheets/plans should be looked at: Liu Ma Cheung & Ors v Lian Yin Fu (unrep, HCA 181/2004, 26 October 2007) (§§79-83).

(ii)  when the location of the lot boundary has been defined, the area of the lot can be derived therefrom: Tam Mo Yin v Attorney-General [1996] 1 HKC 379 at pp 388H-389F (§§86-132).  See also Boundaries and Easement, Sweet & Maxwell, Colin Sara (6^th Ed) at §1-010 (§87).

44.When considering the extraneous evidence, I consider I have taken the correct view that the Chinese Tenancy Agreement relied upon by The plaintiff cannot assist the construction of the Parcel Clause.   I reasoned in the Judgment that:-

(i)  The plaintiff’s factual account based on the Chinese Tenancy Agreement was not supported by any documentary evidence (§§56 & 108-109) and contradicted with Lee’s Son’s letter of 6 January 2011 (§l10).

(ii)  The extrinsic evidence for the purpose of the construction of the Parcel Clause must be distinguished from the plaintiff’s own subjective intention, belief and assumption (§77(1)).

(iii)  The 1990 aerial photographs clearly showed that the structures erected were outside both “Boundary 1” and “Boundary 2” as shown on the ASOC Plan (§77(2)).

(iv)  The plaintiff was not a truthful witness (§§56-59, 116) and his evidence was in direct conflict with his own expert’s opinion on the crucial issue of the exact location/boundary of his Lot (§§117-123).

45.For the above reasons, on the question of construction, I think I was correct to rule that:-

(i)  The description of the property “as shown and coloured Pink on the Plan annexed hereto” is clear and definite.

(ii)  The documents listed in (§84) together with the 1992 Assignment and the 1992 Assignment Plan should also be taken into account when determining the P’s lot boundary.

(iii)  The graphical measurement of the location, size, and shape of the plaintiff’s lot as shown in the 1992 Assignment Plan shall prevail over the textual description of the area and the dimensions.

46.Viewed this matter in the above findings, I am of the view that there is simply no legal basis for the plaintiff to mount an appeal based on those proposed Grounds.

Grounds 1 to 3 & 8

47.The subject matter of Grounds 1 to 3 and 8 mainly concerns the balancing exercise of the land surveying evidence adduced by the parties to address the two main questions of fact in Issue 3, ie whether the respective lot boundaries are in conflict and whether there is any encroachment on the plaintiff’s lot.

48.The correct approach recognised in law is that the location of the Pink Portion should first be defined, the area and dimensions can thus be derived from such defined boundary (§§86-87).  In the Judgment, I found that the experts for the defendants had all correctly taken this conventional methodology when preparing their opinions and re-establishing (for expert for the other the defendants) the location of the boundary of the Pink Portion (§l70). Conversely, I rejected the “unconventional” / “reverse engineering” methodology adopted by the expert for the plaintiff by taking “140 sq m (about)” as the starting premises (§140).  In this regard, what the plaintiff’s says in those Grounds that the court erred in giving insufficient weight to the stated area “140 sq m (about)” must be wrong.  Even when the court looked closer at the working steps taken by Mr Chan, the plaintiff’s expert, the court found that they were flawed (§§136-139, 141).

49.I agree with Ms Chan for D4 that, in formulating those Grounds, the plaintiff simply ignored the following critical points/findings made by the court:-

(i)  The stated “140 sq m (about)” and dimensions cannot define the plaintiff’s lot boundary (§86).  The court accepted Mr Ng’s evidence, ie the stated area and dimensions cannot allow him to work backward to find out the boundary of the plaintiff’s lot because “the boundary consisted of the location information and the shape of the lot”, as this must be right and can only make sense (§194).

(ii)  The court was not tasked to determine the exact location of the plaintiff’s lot but which is the likely boundary of the plaintiff’s lot for the purpose of determining the plaintiff’s claim in this action (§213) viz whether the plaintiff’s lot is “Boundary 1” as he claimed.  Put it this way, the court was not asked to determine whether the area of the plaintiff’s lot should be 140 sq m or 97 sq m (the graphical area worked out by Dr Ching, expert for D1-3, 5&6)).

(iii)  There are other entities on the 1992 Assignment Plan which can aid the definition of the location of the Pink Portion (§142).  They include the black dash lines outlining the Pink Portion, the scale of 1:1000, the scale bar, the grid lines (which conform and align with the 1980 Grid Reference), the North indicator, the map base, the ground features (for comparison with Lot Index Plan for identifying 6 ground reference features (by Dr Ching) (§172(2)), for comparison with the 1985 survey sheet for identifying 2 L-shaped buildings and field bunds as reference ground features (by Mr Ng) (§192).

(iv)  From the lot development history, the Block Government Lease Plan in 1905, the Division Plan and the Rectification Plan (both in 1994) are all scaled with Hong Kong 1980 grid reference with North indicator.  Those historical plans are graphical depiction of the relevant pieces of land concerned, showing graphically their shapes, locations and dimensions (§142).

(v)  The photogrammetric plots prepared by Ms To showed that the plaintiff’s roofed-over structures were inconsistent with Boundary 1 and Boundary 2.  The court accepted Mr Ng’s interpretation of Ms To’s photogrammetric plots that there were no prominent boundary like features (except the vertical cutting) as secondary surveying evidence (§190).

(vi)  The vertical cutting (the retaining wall) showed that it was erroneous for Mr Chan to angle scale off D1 and E1 as a starting point as if the joining line was along the retaining wall because D1 was quite far away from the vertical cutting in the relevant photogrammetric plot (§§149-150).

(vii)  Mr Chan’s methodology ignored the pentagonal shape of the Pink Portion, and his selective scaling off approach is full of anomalies (§§155 & 156).

50.In my view, those Grounds which challenge the proper weighing of the expert’s evidence do not have any reasonable prospect of success at all.

Any other interests of justice for hearing the appeal

51.I find there are no other reasons justifying the grounds of appeal.  As this is a private land boundary dispute and does not involve any great or public importance, I find there is no other interest of justice for the Court of Appeal to hear this appeal. 

CONCLUSION

52.For the aforesaid stated reasons, I dismissed the Summons at the hearing with an order for the plaintiff to pay the costs of the defendants.  I also ordered that the costs should be summarily assessed by me on papers.  For that purpose, I invited the parties to make written submission on the issue of costs, in particular the basis of assessment, ie whether the plaintiff should pay those costs on an indemnity basis, given the unmeritorious nature of the application.

WHETHER COSTS SHOULD BE AWARDED ON AN INDEMNITY BASIS

53.Judging from the history of this appeal, I find this it is a half-hearted / half-baked attempt on the part of the plaintiff in launching an appeal over the Judgment which involved detailed analysis of both the oral evidence of factual witnesses and experts given to the court over a period of 9 days (with 1 day reserved for final submissions).  The last minute issued of the Summons to apply for leave to appeal to the Court of Appeal and the lack of preparation, including the failure to obtain all the trial bundles and papers from the former solicitors and the audio or written transcripts of the proceedings, indicates to me that the plaintiff had no genuine intention to formulate and launch a proper appeal at all.  In my view, the plaintiff is merely trying to dress up findings of facts as issues of law. He also fails to pinpoint to any misapprehension of evidence resulting in the alleged errors in the findings of facts.  It is simply a repetition of the arguments and assertions which had been advanced before the court during the trial, which were soundly rejected by me in the Judgment. 

54.With respect to the plaintiff’s current solicitors and counsel, the alleged issues of law they have now based on also was based on their lack of full understanding of the contents of the Judgment and the evidence transpired during the trial.  While I do not blame them for not able to understand what took place during this 10-day trial, they should at least read the transcripts or hear the audio recordings of what took place during the trial before launching such ambitious application.  With respect, a lot of grounds they have formulated in the proposed grounds of appeal have been misconceived and should have never been raised.  In my Judgment, the proposed grounds of appeal are totally devoid of merits, unarguable and based on distorted understanding of the Judgment.  In this respect, I find this case is not much different from the case of Leung Wing Sze Wins & Anr v Li Oi Lam otherwise known as Sara Li & Anr [2020] 2 HKLRD 989 (His Honour Judge K W Wong) at §§59 to 63.

55.I therefore will order the costs in this case should be paid by the plaintiff on an indemnity basis.

SUMMARY OF ASSESSMENT ON COSTS

56.Having studied the statement of costs submitted by the various defendants lodged on 24 and 25 September 2020 respectively and the lists of objection lodged by the plaintiff on 7 October 2020, I hereby summarily assess the costs of the various defendants on the Summons as follows:-

(1)  D1 to D3, D5 and D6 at $72,000;

(2)  D4 at $98,000;

(3)  D7 to D9 at $58,000.

57.I further order that the above assessed costs to be paid by the plaintiff to the various defendants forthwith. 

Ms Astina Au, instructed by So, Lung & Associates, for the plaintiff

Mr Andrew Mak, instructed by Adrian Yeung & Cheng, for the 1^st, 2^nd, 3^rd, 5^th & 6^th defendants

Ms Jess Chan, Senior Government Counsel of Department of Justice for the 4^th defendant

Mr Kenneth YF Wong, instructed by Raymond Siu & Lawyers for the 7^th to 9^th defendants