The Incorporated Owners of Kam Luk Building v. Ng Ching Yin By Yeung Yiu Hsuan Vincent, Her Guardian Ad Litem

CACV 16/2021, [2023] HKCA 1352

On Appeal From [2022] HKCA 1896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 16 OF 2021

(ON APPEAL FROM DCCJ 1648 OF 2016)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.  INTRODUCTION

1.By way of a judgment after trial dated 9 April 2020 (“the District Court Judgment”), His Honour Judge Andrew Li (“the Judge”) dismissed the plaintiff’s claim for recovery of possession of a common area and space underneath Staircase No 63 (“Staircase 63”) on the ground floor of Kam Luk Building (“the Building”) and further held that the defendant had established adverse possession and acquired possessory title to Staircase 63.  The plaintiff appealed the District Court Judgment to this court.

2.On 7 January 2022, this court at the end of the hearing granted the order (“the Order”) allowing the appeal, setting aside the District Court Judgment and (among other things) requiring the defendant to deliver vacant possession of Staircase 63 to the plaintiff.  This court later handed down its reasons for judgment (“the CA Reasons for Judgment”) on 23 December 2022 ([2022] HKCA 1896) setting out the reasons for granting the Order.

3.This is the defendant’s application for, amongst others, leave to appeal to the Court of Final Appeal (“the CFA”) against the Order.

4.This judgment should be read together with the CA Reasons for Judgment and, unless otherwise stated, we adopt herein the abbreviations used in the CA Reasons for Judgment.

B.  THE APPEAL AND THE CA REASONS FOR JUDGMENT

5.We have set out in the CA Reasons for Judgment in some detail the relevant background leading to the District Court Judgment.  For present purposes, as a brief recap, we will highlight the following.

6.The Building was erected in or about 1973 by the developer and first owner Shun Shing.  The plaintiff was incorporated in July 2008 as the Building’s incorporated owners.  After its incorporation, the plaintiff became the owners of the common area of the Building, including Staircase 63.

7.On 8 November 2010, the plaintiff’s then solicitors issued a demand letter to the defendant as the occupant of Shop 63 at that time requesting her to demolish Shop 63 and reinstate Staircase 63 to its original state.  The defendant’s then solicitors replied to the plaintiff by way of a letter dated 3 December 2010, refusing the plaintiff’s request and stating that she had acquired possessory title to Staircase 63.

8.On 11 April 2016, the plaintiff took out the present action against the defendant.  In essence, the plaintiff’s case is that the defendant has trespassed on Staircase 63, a common area.  It therefore seeks orders, inter alia, that the defendant do demolish the trespassing structure, reinstate the common part and deliver vacant possession of Staircase 63, and be restrained from trespassing on the common part.  The plaintiff also seeks mesne profits and damages, as well as interest and costs.

9.In defence, it is the defendant’s case that since 1973, she through her father (Ng Senior), her family (the Ngs) and herself had been enjoying exclusive possession of Staircase 63 for more than 20 years or 12 years (since 1991) by virtue of the fact that she and/or her family have occupied Staircase 63 to operate a photo finishing and retail business named “Silvery Photo Supplies” (“the Business”) at Shop 63. The defendant therefore claims that she has acquired possessory title to Staircase 63 by virtue of adverse possession.  The defendant thus counterclaims for a declaration that the title of the plaintiff and/or its predecessors to Staircase 63 has been extinguished and the plaintiff’s claim is statute-barred.  Further and in the alternative, the defendant claims that due to the inaction and delay of the plaintiff and its predecessors in the past 40 years, the plaintiff’s claim is barred by reason of the equitable doctrines of acquiescence, waiver, laches and estoppel.

10.After trial, the Judge granted judgment in favour of the defendant.  Relevant to present purposes, in essence, the Judge found that:

(1)  Ng Senior first moved into Staircase 63 pursuant to the Wu Kam Licence, which was a contractual licence granted by one Wu Kam (who was then a shareholder and director of Shun Shing) to allow Ng Senior to operate the Business there.  However, in this respect, the Judge on the evidence specifically ruled against the defendant’s case that Ng Senior had “purchased” or was under the impression that he had purchased Staircase 63 from Wu Kam.

(2)  Over the years, the defendant through Ng Senior, her family and herself had adversely possessed Staircase 63 and obtained possessory title to it.

(3)  In any event, even if she had not done so, the defendant had established her equitable defences on acquiescence, waiver, estoppels and laches.  This was so as the plaintiff and its predecessors had been guilty of long delay in taking enforcement action against the Ngs, which had led them to believe that their respective possession of Staircase 63 would be tolerated and, relying on this, they had carried out various improvements to the property, some of which (such as the installation of an electricity meter) had even benefited the other co-owners of the Building.  In these circumstances, it would be unjust and inequitable to allow the plaintiff to claim vacant possession thereof.

11.As mentioned above, the plaintiff appealed the District Court Judgment to this court, which appeal was allowed.

12.As will become clear later, in light of the proposed grounds of appeal to the CFA, we only need to summarize the following principal reasons as to why we allowed the appeal.

13.First, in accordance with well-established legal principles, given the Wu Kam Licence, Ngs’ possession of Staircase 63 was only that of the licensor (ie, Wu Kam, whether or not Wu Kam had the necessary authority from Shun Shing to grant the licence in the first place), and thus there could not be any adverse possession of Staircase 63 by the defendant through Ng Senior, her family and herself.  See: [28] ‑ [37] of the CA Reasons for Judgment.

14.Second, in relation to the Wu Kam Licence, the defendant’s own evidence did not support the defendant’s contended case that Ng Senior was under a mistaken belief that he had rightfully purchased Staircase 63 from the paper owner and since then had become its lawful owner (even though when in fact he had not).  See: [40] ‑ [44] of the CA Reasons for Judgment.

15.Third, the defendant’s further contention that Wu Kam had adversely possessed Staircase 63 through his licensees (ie, Ng Senior and his family) and the defendant, being the “last squatter in line”, was entitled to the accumulated periods of adverse possession and established her adverse possession claim must also fail, as there was no evidence to show that Wu Kam was dealing with Staircase 63 “as if he was a true owner of the land” at the time in granting the Wu Kam Licence.  See [49] ‑ [51] of the CA Reasons for Judgment.

16.Fourth, the Judge was also wrong in upholding the defendant’s equitable defences on acquiescence, waiver, estoppels and laches because:

(1)  Given that these defences (except proprietary estoppel) are all personal in nature and do not run with the land, the Judge erred in taking into account the 40 years of inaction of the plaintiff’s predecessors.  On the facts, there was at most only 6 years of inaction by the plaintiff after its incorporation and becoming the owner of Staircase 63 in enforcing its rights against the defendant: [74] ‑ [77] of the CA Reasons for Judgment.

(2)  The Judge was also plainly wrong in concluding that there were unjust circumstances on the evidence in the present case.  On the facts, the Ngs had obtained benefits instead of suffered detriment when (a) they operated the Business and made profits by occupying Staircase 63, and (b) the various costs they said they had incurred in installing various facilities and for upkeeping the place were all necessary for and incidental to the Business’ operation itself: [78] of the CA Reasons for Judgment.

(3)  Given the same above reasons, in particular the lack of any detrimental reliance, even if the defendant was also relying on proprietary estoppel as a defence in her pleading and at trial as submitted, that defence must also fail: [80] ‑ [81] of the CA Reasons for Judgment.

C.  THE DEFENDANT’S PRESENT VARIOUS APPLICATIONS

17.Subsequent to the Order, the defendant has taken out the following applications:

(1)  On 1 March 2022, the defendant, acting in person, filed a summons for stay of execution of the Order (“the Stay of Execution Summons”);

(2)  On 21 June 2022, the defendant, acting in person, filed a Notice of Motion (“the Notice of Motion”), reserving her right to advance her intended ground(s) of appeal later after this court handed down its reasons;

(3)  On 20 April 2023, the defendant (now legally aided[1]) took out a summons for adducing new evidence (“the New Evidence Summons”) and a summons for amendment of the Notice of Motion (“the Amendment Summons”), attaching the draft Amended Notice of Motion stating seven questions;

(4)  On 21 June 2023, the defendant took out a summons for Mr Yeung Yiu Hsuan Vincent (“Mr Yeung”) (who is the defendant’s nephew) to be appointed as her guardian ad litem.

18.In relation to the last Summons, on 18 July 2023, Poon CJHC granted the order sought and further ordered that costs of and occasioned by the application be in the cause of the appeal.

19.After reviewing these applications and the respective written submissions lodged by the parties, we are of the view that it is appropriate to determine all of them on paper without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”) and in accordance with the usual practice pursuant to paragraph 3 of Practice Direction 2.1.

20.Further, as in our view all the defendant’s applications will stand or fall on whether or not leave to appeal to the CFA should be granted on the questions as set out in her draft Amended Notice of Motion, we will first consider the Amendment Summons and the leave application.

D.  THE APPLICATION FOR LEAVE TO APPEAL TO THE CFA AND THE AMENDMENT SUMMONS

21.Given that the defendant could only properly formulate her grounds of appeal after receiving the CA Reasons for Judgment, we are satisfied that she should be permitted to amend the Notice of Motion to put in those proper grounds.  We therefore allow the Amendment Summons and give leave to the defendant to amend the Notice of Motion in the form of the Draft Amended Notice of Motion, and file and serve the Amended Notice of Motion within five days of this judgment.  We will deal with the costs of the Amendment Summons at the end of this judgment.

22.We now turn to consider the defendant’s application for leave to appeal to the CFA on the grounds/questions as set out in the Amended Notice of Motion.

23.The court will only grant leave to appeal to the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

24.Further, it is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re‑running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3].

D1.    Whether there are questions of great general or public importance

25.The defendant has set out the following six questions of great general or public importance in the Amended Notice of Motion:

(1)  Whether a proprietary estoppel (relating to interest in land) established by a claimant against the predecessor-in-title of the land, is capable of binding upon the successor-in-title of the land including the current registered owner?

(a)  Whether such proprietary estoppel is binding upon the successor-in-title because the equity established is proprietary in nature and/or is a proprietary right over the land and thus, binding upon the successor-in-title? Or

(b)  Whether such proprietary estoppel is binding upon the successor-in-title of the land depends on after the establishing of the proprietary estoppel against the predecessor-in-title of the land, whether such estoppel claim would have demanded the predecessor under a duty to confer on the claimant some recognizable proprietary interest in the land, so that such interest would be capable of binding the successor-in-title? (“Question 1”)

(2)  What should be the correct approach in law in deciding whether the successor-in-title of the land is bound by the claimant’s proprietary estoppel established against the predecessor-in-title of the land? To what extent is the predecessor’s inaction, acquiescence and/or conduct prior to the successor-in-title’s involvement in the land relevant to the court’s assessment in such circumstance?  The appropriateness of taking into account the conduct or inaction of the predecessor-in-title in the overall assessment of whether the proprietary estoppel is binding upon the successor-in-title? (“Question 2”)

(3)  In such circumstance what should be the correct approach in law in determining the appropriate equitable remedy to be granted to the claimant who has established the proprietary estoppel against the predecessor-in-title of the land which is binding upon the successor-in-title of the land? (“Question 3”)

(4)  Whether there can be proprietary estoppel arising from an oral promise relating to interest in land made by the promisor being the land’s predecessor-in-title which is also binding on the successor-in-title of the land? (“Question 4”)

(5)  Whether there can be proprietary estoppel which is binding on the successor-in-title of the land in the absence of quantifiable financial detriment?  Would the earning and receipt of benefit or income relying on the assurance of the landowner, necessarily prevent the claimant from establishing detriment?  Would the claimant for estoppel be regarded as detrimented as a result of the disturbance of a settled expectation that he/she would be able to continue to use and to occupy the property? (“Question 5”)

(6)  In resolving the question of “detriment” for establishing the doctrine of proprietary estoppel, should the court as a matter of principle, undergo the weighing exercise of considering the advantages/benefits against disadvantages suffered by the claimant before a conclusion on detriment can be reached?  In the court’s process of weighing the advantages and disadvantages to decide whether detriment has been established for proprietary estoppel, how should the court approach or weigh the claimant’s attachment or dependence on a property arising from his/her settled expectation that he/she would be able to continue to use the property? (“Question 6”)

26.Mr Leung, counsel for the defendant, submits that Questions 1 ‑ 6 are questions of great general and public importance as they relate to “the law on equitable doctrine and remedies in particular the operation of proprietary estoppel against third parties”.

27.With respect, we do not agree.  In our view, Questions 1 ‑ 5 do not arise from the CA Reasons for Judgment, and thus are not involved as issues in the intended appeal to the CFA.

28.It is pertinent to note that, in substance, these questions are all related to the court’s determination in rejecting the defendant’s reliance on proprietary estoppel as a defence.

29.For this purpose, it would be helpful to recite our reasons for rejecting the defendant’s equitable defences, including proprietary estoppel, at [76] ‑ [82] of the CA Reasons for Judgment as follows:

“76. The defences of acquiescence, waiver, laches and estoppel (except proprietary estoppel) are all personal in nature and do not run with the land. See: Grand Power International Ltd v Chan Sing Hoi Enterprises Ltd [2020] 2 HKLRD 142 at [47]. Hence, even assuming that those equitable defences were made out by the defendant against the plaintiff’s predecessors, they do not bind the plaintiff. On this basis alone, the Judge had erred in law in taking into account the plaintiff’s predecessor’s inaction when considering the question of delay for the purpose of finding in favour of the equitable defences against the plaintiff.

77. Moreover, it is common ground that 2 years after the incorporation of the plaintiff, it had instructed its solicitors to issue a demand letter to the defendant on 8 November 2010. As such, as early as 2010, the plaintiff had made it clear to the defendant that her possession of Staircase 63 was not tolerated. Although the plaintiff had failed to reply to the defendant’s solicitor’s reply letter dated 3 December 2010 and only issued the writ on 11 April 2016, the only period of ‘inaction’ on the part of the plaintiff in enforcing rights against the defendant over the possession of Staircase 63 is about 6 years.

78. Further, we are also of the view that the Judge’s conclusion on the unjust circumstances in the present case is also plainly wrong:

(1) It is not disputed that the defendant and her family members had had the benefit of using Staircase 63 and had continued to make profit from its use throughout. Clearly, they had not suffered any detriment during this period of ‘inaction’ on the part of the plaintiff in continuing to carry on the Business for profits and later renting it out for rental income.

(2) Mr Leung’s submissions that the installation of the electricity meter had rendered it unjust in all the circumstances for the plaintiff to claim possession of Staircase 63 are also untenable, for the simple reason that the Ngs would in any event have to install the electricity meter for the operation of the Business. Moreover, on the evidence, they received HK$10 from each owner as a monthly contribution for the electricity bill. Whether the income generated from the Business and her use of Staircase 63 was modest or not does not negate the fact that in the circumstances of this case, the installation of the electricity meter cannot be regarded as a detriment to the defendant in relying on the plaintiff’s ‘inaction’ before it commenced these proceedings against the defendant to recover possession of Staircase 63. The same applies to the Ngs’ upkeeping and maintenance of Shop 63.

79. For the above reasons, given the erroneous material factual finding on the length of the delay and the plainly incorrect conclusion on the unjust circumstances in the present case, it is justified for this court to set aside the Judge’s findings on the equitable defences, and conclude instead that none of the defences are established as it is not unjust in the circumstances of this case to allow the plaintiff’s claim to repossess Staircase 63. The plaintiff therefore also succeeds under P’s Grounds 4 and 5.

80. Under D’s Ground 4, Mr Leung also seeks to argue that the Judge should have made it expressly clear and held specifically that the estoppel which was established at trial was a defence of ‘proprietary estoppel’.

81. For the reasons we have explained above, in particular, the lack of detriment suffered by the defendant, there is no basis whether on the facts or in law for the defendant to rely on the equitable defence of estoppel, including proprietary estoppel.

82. Accordingly, D’s Ground 4 also fails.”

30.It is thus clear that we rejected the defendant’s alternative ground of proprietary estoppel on the principal basis that she could not establish detrimental reliance on the facts of this case (see [78], [79] and [81] of the CA Reasons for Judgment).

31.In the premises, the purported issues of law or principle said to be involved under Questions 1 ‑ 5 simply do not arise from our reasons in rejecting the said defence.  We will not grant leave to appeal under these questions.

32.Insofar as Question 6 is concerned, it is also clear that our conclusion that the defendant had suffered no detriment was premised on the undisputed evidence and facts, and is fact sensitive and relates to the specific circumstances of this case.  It does not involve any purported questions of principle as to the court’s approach in its weighing exercise.

33.Question 6 therefore also does not arise from the CA Reasons for Judgment nor is it arguable.  We will also not grant leave to appeal under this question.

D2.    The “or otherwise” ground

34.The defendant further sets out what she says to be the “or otherwise” ground as Question 7 in the Amended Notice of Motion as follows:

“Question 7

7.)  The Defendant also seeks leave on the ‘or otherwise’ basis.  The Defendant’s case is that the Court of Appeal’s (‘CA’) approach in assessing the question of detriment was, with respect, wrong in principle because the CA has not undertaken the weighing exercise necessary for the determination of the issue on whether detriment has been established.  The CA has only focused on the actual income or modest income that the Defendant and/or her family apparently had generated over the years in concluding that there was no detriment on their part.  This approach (the Defendant contends) is not the correct weighing / balancing exercise because the CA has failed to weigh the alleged income generated by the Defendant’s family against the detriment (both financial and non-financial) suffered by the Defendant and her family including the costs incurred by the Defendant and her family in maintaining and upkeeping Staircase 63, the risk that the Defendant’s family had to bear in operating the business at Staircase 63 and the settled expectation that the Defendant and her family can continue to occupy Staircase 63 indefinitely without being evicted.”

35.It is not the practice of this court to grant leave under this ground but to defer to the views of the Appeal Committee of the CFA.[2]  We do not see any reasons to depart from this practice.

36.In any event, leave to appeal under the “or otherwise” limb should only be granted on exceptional basis.  We do not see any exceptional basis in relation to Question 7, when the question only seeks effectively to reargue what weight the court should attach to different aspects of the evidence relating to the issue of detrimental reliance, which is fact and case-specific.

37.We therefore would not grant leave to appeal on the “or otherwise” ground for Question 7.

E.      THE STAY OF EXECUTION SUMMONS

38.Given that we have refused leave to appeal on Questions 1 ‑ 7, there is no question of granting any stay of execution of the Order.  We therefore also dismiss the Stay of Execution Summons.

F.  THE NEW EVIDENCE SUMMONS

39.By the New Evidence Summons, the defendant seeks leave to adduce a copy of a letter dated 4 February 2010 said to be sent by Wu Kam to Ng Senior and Madam Chan Sok Wah (“the Alleged Wu Kam Letter”) as fresh evidence to be used in the intended appeal to the CFA.  The content of the Alleged Wu Kam Letter is as below:

“Mr. Kam Woo

[an address in NSW]

4 February 2010

Mr. Ng Ying Thong [Ng Senior]

([HKID Number])

Madam Chan Sok Wah [Ng Senior’s wife]

([HK ID Number])

Dear Mr Ng and Madam Chan

Re: G/F, 63 Shek Yam Road, Upper Kwai Chung, N.T., Kowloon Hong Kong

I wish to confirm the following:

In about 1973 or 1974, Golden Hill Land Development Co. Ltd. of which I was a director, developed the buildings located at 61‑65 Shek Yam Road, Upper Kwai Chung, New Territories, Kowloon, Hong Kong. The land was owned at the time by Shun Shing Weaving Co. Ltd., of which I was also a director.

When the development was completed, there was a space in the building between No. 61 and No. 65, and which became known as Ground Floor, 63 Shek Yam Road. I confirm that in my capacity as a director of both companies, I did verbally transfer that space to you. I understand that you have conducted a business known as ‘Silvery Photo Supplies’ on the premises, and that this business was first registered to your son Ng Tung Chow [ID No.] and then handed over to your daughter Ng Ching Kit [ID No.], who continues to operate the business from those premises.

In view of the transfer of the space to you (which was not documented in writing but which was nevertheless a real transfer), the occupation of the premises by your daughter is not illegal.

With best wishes,

Yours sincerely,

[signature]

Wu Kam”

40.In this respect, the defendant’s nephew, Mr Yeung, has filed an affidavit on 20 April 2023 in support of the application.  Mr Yeung has deposed to the factual circumstances which he says would justify the admission of the letter under the three conditions set out in Ladd v Marshall [1954] 1 WLR 1489.  In gist, it is said that the Alleged Wu Kam Letter was only discovered in February 2022 in the following peculiar circumstances:

(1)  Ng Senior used to reside in a property in Fairview Park, Yuen Long, together with Tung Chau (the defendant’s eldest brother), Ching Kit (the defendant’s elder sister) and a helper.  After Tung Chau relocated to the Mainland in 2016 and with the passing of Ng Senior in December 2017, Ching Kit and her helper were the only ones living there.  In this respect, Ching Kit has also been suffering from some serious psychological and psychiatric problems.

(2)  The Alleged Wu Kam Letter was eventually discovered by Ching Kit in around Chinese New Year in February 2022, when she went through Tung Chau’s property after he passed away on 30 April 2021. 

41.In response, the plaintiff has also filed the 2^nd affirmation of Fung Chi Ching dated 27 June 2023 to oppose the New Evidence Summons (and the Amendment Summons).

42.Based on the above evidence, Mr Leung submits that the Alleged Wu Kam Letter satisfies the requirements in Ladd v Marhsall for the following reasons:

(1)  First, he says under the circumstances as deposed to in Mr Yeung’s Affidavit, the letter could not have been discovered by the defendant before the trial or the appeal before this court with reasonable diligence.  This is particularly so as (a) the letter was sent directly to Ng Senior and the defendant could not have any knowledge of its existence, and (b) when the action was commenced in 2016, Ng Senior was bedridden and had been suffering from Alzheimer’s disease for some time[3].

(2)  Second, the Alleged Wu Kam Letter would potentially serve as direct evidence to support and prove the defendant’s case that Ng Senior was under the mistaken belief that they had legally acquired Staircase 63 as it shows that Wu Kam had transferred the space of Staircase 63 to Ng Senior and his wife “likely” as a gift or a conveyance.

(3)  Third, the Alleged Wu Kam Letter is credible given the signature there appears to match with Wu Kam’s signature on the Memorandum of Articles of Association of Shun Shing.  In any event, the plaintiff has not disputed that the Alleged Wu Kam Letter is apparently credible.

43.With respect to Mr Leung, for these reasons, we dismiss the application:

(1)  Leaving aside the question of whether the application can satisfy all the requirements in Ladd v Marshall (on which we have reservations, eg there was no evidence of the circumstances as to how it came about that Wu Kam suddenly sent Ng Senior the alleged letter in February 2010, such as whether it was in response to a request from Ng Senior, in which case one would have expected it to have been brought to the attention of other members of the family who were occupying Staircase 63 then), it is plain that the new evidence does not relate to any of the proposed grounds of appeal as set out in Questions 1 ‑ 7.  It is therefore irrelevant to the intended appeal to the CFA.

(2)  In any event, given that we have now refused to grant leave to appeal to the CFA, the application to adduce fresh evidence must also fall away.

E.  DISPOSITION AND COSTS

44.For all the above reasons, we dismiss the defendant’s application for leave to appeal to the CFA based on the grounds set out in the Amended Notice of Motion, the New Evidence Summons and the Stay of Execution Summons.  There is no reason why costs should not follow the event.  We further make an order nisi that costs of these applications be to the plaintiff, to be assessed summarily.

45.In relation to the Amendment Summons, the defendant only seeks her costs to be in the cause of the intended appeal.  Since we have refused to grant leave to appeal and dismissed the Amended Notice of Motion, we think it is only just and fair to make no order as to costs of the Amendment Summons, and we so order.

46.For the purpose of summary assessment of the costs of the leave application, the Stay of Execution Summons and the New Evidence Summons, the plaintiff has filed its Statements of Costs respectively on 15 June 2023 (“the June Statement of Costs”) and 7 August 2023 (“the August Statement of Costs”) seeking a total sum of $221,998.99:

(1)  The June Statement of Costs relates to the Stay of Execution Summons, and the plaintiff claims the amount of $62,369.00 (including counsel’s fee of $35,000.00).

(2)  The August Statement of Costs relates to the Amendment Summons and the New Evidence Summons.  The plaintiff asks for the sum of $159,629.99 (including counsel’s fee of $120,000.00)  As we understand it, the costs relating to the Amendment Summons includes the costs incurred for opposing the leave to appeal application as well.

47.Given the nature of all these applications, and the relatively small volume of papers involved, we find the costs claimed for both the Stay of Execution Summons and the leave to appeal application together with the New Evidence Summons are clearly on the high side.  We reduce them respectively to $35,000.00 and $65,000.00.  In the premises, the total costs of the plaintiff is summarily assessed (on nisi basis) at $100,000.00.

48.We further order that the defendant’s own costs be taxed in accordance with the Legal Aid Regulations, Cap 91A.

Written submissions by Mr Dicky Cheung and Ms Vivian Chan, instructed by Huen & Partners, for the Plaintiff

Written submissions by Mr Adrian Leung, instructed by Liu, Chan & Lam, assigned by the Director of Legal Aid, for the Defendant