Ang Jimmy Tjun Min v. Khoo Chun Kim and Others

HCA 16/2021 and
HCA 17/2021

(Heard Together)

[2024] HKCFI 2380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 16 OF 2021

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BETWEEN

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 17 OF 2021

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DECISION ON COSTS

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A. INTRODUCTION

1.By the Decision dated 30 November 2023 (“Decision”)  (for ease of reference, abbreviations used in the Decision will be adopted herein), this court:

(1)  Allowed §§1 and 2 of Mother’s Summonses dated 6 January 2023 (the “Deposition Summonses”).  They concern Mother’s application for her evidence to be taken by way of deposition in both HCA 16/2021 (“HCA 16”)  and HCA 17/2021 (“HCA 17”), to be examined on oath before a Master: see Decision §§2, 30.

(2)  Dismissed §3 of the Deposition Summonses, which relate to the further aspect of Mother’s application to have her depositions taken by VCF: see Decision §31.

(3)  Ordered on nisi basis (the “Costs Orders Nisi”)  that:

(a)  The costs of and occasioned by §§1 and 2 of the Deposition Summonses be costs in the cause; and

(b)  The costs of and occasioned by §3 of the Deposition Summonses be paid by Jeffrey, Eileen and Mother to Jimmy, to be taxed if not agreed.

2.By Summonses dated 19 December 2023 (“Mother’s Variation Summonses”), Mother applies to vary the Costs Orders Nisi – only concerning the first aspect, ie §§1 and 2 of the Deposition Summonses:

(1)  The costs of and occasioned by §§1 and 2 of the Deposition Summonses up to and including 31 August 2023 be paid by Jimmy (to be taxed if not agreed), and thereafter be in the cause.

(2)  For the avoidance of doubt, no issue is taken by Mother on §3 (ie the VCF aspect which Mother failed).

3.The relevant date of 31 August 2023 is important.  Only then did Jimmy indicate consent to Mother’s application for deposition.

4.Similar terms of variation are sought by Jeffrey and Eileen by their Summonses also dated 19 December 2023 (“Jeffrey & Eileen’s Variation Summonses”).

B.   RELEVANT LEGAL PRINCIPLES

5.Where the court sees fit to make any order as to the costs of or incidental to any interlocutory proceedings, it may order the costs to follow the event or make such order as it sees fit: Order 62, rule 3(2A)  Rules of the High Court, Cap 4A (“RHC”).

6.As to factor (e)  regarding the taking into account of “the conduct of all the parties” under Order 62, rule 5(1)  RHC, the following provisions in Order 62, rule 5(2)  RHC are pertinent:

(1)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and

(2)  the manner in which a party has pursued or defended his case or a particular allegation or issue.

7.Hong Kong Civil Procedure 2024 further provides at Practice Note 62/5/6:

“The judge should consider whether or not the parties have conducted the litigation in accordance with a system of civil litigation which is designed to enable the parties to know where they stand at the earliest possible stage and at the lowest practicable cost, so that they may make informed decisions about their prospects and sensible conduct of their cases. Ford v GKR Construction Ltd [2000] 1 WLR 1397 (CA); and Amec Process & Energy Ltd v Stork Engineers and Contractors BV (Costs Order)  [2000] BLR 70.” (Emphasis supplied)

8.Ultimately, the court has a wide and general discretion in matters relating to costs, and how the discretion ought to be exercised in any given case must depend on the facts and circumstances of the case: China Medical Technologies, Inc (in liquidation)  v Wu Xiaodong [2024] HKCA 310, §8.

C.  DISCUSSION

9.The criterion laid down by Order 39, rule 1(1)  RHC for examination of witnesses before trial is where it appears necessary for the purposes of justice: Kwan Kwok Ki v Wong Tung Hung [2023] HKCFI 150 at §§15-16.  The burden of proving so is on the applicant: Delco Participation BV v HWH Holdings Ltd [2021] HKCFI 249, §25.

10.The witness’s advanced age alone does not automatically entitle her to be examined before trial, something more is required to make it necessary for the purposes of justice to do so.  When considering an application under Order 39, rule 1(1)  RHC, the relevant issues in the dispute need to be identified so that the materiality of the evidence of the witness sought to be examined can be considered: Kwan Kwok Ki, Supra at §18.

11.To demonstrate the materiality of her evidence, all Mother said in her 1^st affirmations in support of the Deposition Summonses were in §§10-11 of the HCA 16 affirmation and §9 of the HCA 17 affirmation.  These paragraphs have been set out in Mother’s Submissions at §8.

12.After considering Mother’s affirmations in support, Jimmy clearly stated in his affirmations in opposition that Mother had failed to adequately explain why it was necessary for her to give evidence by deposition ahead of the trial.

13.In relation to HCA 17:

(1)  It was only after Jimmy questioned the necessity of her evidence in his affirmation in opposition, Mother claimed for the first time in her reply affirmation that she had “primary knowledge” over some transactions, and that Jeffrey and Eileen did not have “equal level of participation”.  She also claimed for the first time that she made the decision for various transactions involving Leebury.

(2)  It was only at the stage of filing her affirmation in reply, Mother for the first time tried to suggest that she had knowledge of a higher quality than the one possessed by Jeffrey and Eileen, although even then she failed to explain why.

14.In relation to HCA 16, it was only in her affirmation in reply, for the first time, Mother stated that :

(1)  She claimed to have had conversations with the Deceased prior to transferring the MetroCorp Shares to Leslie which touched on the purpose of the transfer.

(2)  She claimed to have acquired properties jointly with the Deceased even before the MetroCorp Shares.

(3)  She claimed to have made the decisions for the specific transfers concerning the misappropriation involving Banner.

15.I agree with Jimmy’s criticism that Mother had conducted the Deposition Summonses by initially holding her cards close to her chest rather than putting them on the table.  In her affirmations filed in support of the Deposition Summonses, she ought at least to have given sufficient indication of the gist of the evidence to allow Jimmy to consider the merits of her Deposition Summonses.

16.It was Mother’s failure to set out the complete picture regarding the uniqueness or relevance of her evidence in her affirmations in support that led Jimmy to affirm in his affirmations in opposition that the necessity and materiality of Mother’s applications for deposition were not properly explained. 

17.Mother’s affirmations in reply were filed on 29 June 2023.  Thereafter, Jimmy acted reasonably by writing to Mother’s solicitors on 31 August 2023 indicating that he would no longer oppose §§1 and 2 of the Deposition Summonses.  

D.  CONCLUSION

18.For the reasons set out above, I would dismiss Mother’s Variation Summonses and Jeffrey & Eileen’s Variation Summonses.  Parties agree that costs should follow the event, I therefore order that:

(1)  The costs of Mother’s Variation Summonses be paid by Mother to Jimmy, such costs are to be taxed if not agreed; and

(2)  The costs of Jeffrey & Eileen’s Variation Summonses be paid by Jeffrey and Eileen to Jimmy, such costs are to be taxed if not agreed.

Mr Ken To and Mr Chester Kwan, instructed by Messrs Hon & Co, for the plaintiff

Ms Ebony Ling, instructed by Messrs K B Chau & Co, for the 1^st and 2^nd defendants

The 3^rd defendant was not represented and did not appear

Mr Brian Fan, instructed by Messrs P C Woo & Co, for the 4^th defendant