Kan Yuk Sum v. Kan Yuk Shing (in His Personal Capacity and As the Executor of the Estate of Tam Lee Yau)

HCMP 268/2023

[2025] HKCFI 2706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 268 OF 2023

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D E C I S I O N

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Introduction

1.On 14 May 2025, I handed down a decision (“the Main Decision”), in which I granted leave to discontinue these proceedings to Sum, with 80% of the costs of these proceedings to Sum.  On 27 May 2025, Shing took out a summons (“the Summons”) for leave to appeal against the Main Decision.  I have directed that the Summons be determined on paper without an oral hearing.  The parties have lodged their respective written submissions in accordance with my directions, and I have considered the same.  For ease of reference, the abbreviations used in the Main Decision are adopted herein.

2.There is no dispute between the parties that leave to discontinue these proceedings should be granted to Sum.  The difference between them is who should bear the costs of the proceedings.  The Main Decision, in substance, is a decision on costs.  It is not disputed that Shing is now seeking leave to appeal against a decision on costs.

3.In this application, the parties are continuously represented by the same counsel, ie Sum is represented by Mr Dickson Chan, and Shing is presented by Mr Ronald Pang.

The principles

4.Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard.^[1]  What is required is a reasonably arguable appeal.  Merely showing that an appeal is “arguable” and “not fanciful” is insufficient.^[2]

5.As said in the above, Shing is now seeking leave to appeal my decision on costs as set out in the Main Decision.  It is trite that a decision on costs is a decision made as a result of an exercise of discretion of the court.  In order to succeed in the intended appeal, Shing has to overcome a high hurdle.[3] It is well-established that the Court of Appeal would not interfere merely because it would have reached a different conclusion had it been hearing the application at first instance.[4]  The Court of Appeal would only interfere where (a) the court below has misunderstood the law or the evidence, or (b) the exercise of discretion by the court below was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.[5]  The Court of Appeal is not to exercise an independent discretion of its own – its initial function is one of review only.[6]

6.An appeal from the judgment made by a judge of the Court of First Instance to the Court of Appeal is not a de novo hearing.  In the notice of appeal, the appellant has to identify a justifiable basis upon which the Court of Appeal may interfere in the decision of the judge below.  The appeal is not a retrial or a de novo rehearing of the application which has already been determined by the court below.[7]

7.The mere fact that certain matters relied on by counsel were not mentioned in the judgment does not mean that the judge had not taken them into consideration.  Nor is the judge required to address all the points made by counsel, whether legal or factual.[8]

Grounds of appeal

8.The grounds of appeal as set out in the Draft Notice of Appeal annexed to the Summons are as follows:

“1. The learned Judge was plainly wrong in law in finding that the present proceedings constituted a hostile action and fell within the third category of the principles in Re Buckton, when in fact it should fall within the second category;

2. The learned Judge’s approach was inherently contradictory with his finding above, as he considered irrelevant factors such as the reasonableness of the actions of the Defendant after placing the present case within the third category of Re Buckton, when such considerations go to the piercing of the inherent indemnity under the second category;

3. The learned Judge erred by considering “it cannot be said that Sum was acting unreasonably by commencing these proceedings” in ordering costs against the Defendant, as this is an irrelevant factor and not a factor that should be considered;

4. The learned Judge erred in holding that “Shing’s motive and/or intention is also not relevant” in the context of considering whether the Defendant should be awarded costs, and a such failed to consider this as a relevant factor;

5. The learned Judge erred in law by distinguishing Chang Wing Ka John v Chang Wing Dee [2021] HKCFI 47 as irrelevant when the Defendant herein had demonstrated substantial compliance with his duties to furnish estate accounts and there were no proper or meaningful criticisms raised by the Plaintiff to such accounts and inventory;

6. The learned Judge was plainly wrong in finding that the Plaintiff’s refusal to accept the Defendant’s offer to discontinue the present proceedings on a no order as to costs basis made by way of without prejudice letters dated 17^th March 2023 and 10^th January 2025 (“WP Offers”) on two separate occasions were not unreasonable refusals;

7. The learned Judge failed to take into account the following relevant factors:-

(a) the Defendant never refused to provide the Supporting Documents and in fact provided the same shortly after these proceedings were commenced;

(b) the Defendant provided the Plaintiff, directly, estate accounts and inventory on 24^th November 2022 shortly after receiving the Plaintiff’s request on 17^th November 2022;

(c) the Plaintiff’s request for the Supporting Documents was the first ever request for such documents notwithstanding the fact that the Defendant had been executor of the Estate since 8^th February 2011;

(d) Estate had already been distributed by 24^th November 2022 and there were no funds for the Defendant to defray his expenses arising out of the provision of estate accounts and inventory and/or the Supporting Documents, but the Defendant provided the same anyway;

(e) by putting forward the WP Offers, the Defendant had essentially agreed to bear the costs of providing the estate accounts and inventory and the Supporting Documents, notwithstanding his entitlement to an indemnity from the Estate which militates any unreasonableness (which is not admitted) on the part of the Defendant prior to the commencement of these proceedings;

(f) that if the WP Offers were accepted, the result would be the same or very similar to the order dated 14^th May 2025 (save and except the Summons which would not have been necessary);

(g) that the Defendant was an in-person litigant of advanced age and had limited education, at the material time, which necessarily impacts the factual finding of whether the Defendant was dilatory and/or acting unreasonably, in particular taking into account when the Defendant received the request for the Supporting Documents from the Plaintiff;

(h) the relief sought in the Originating Summons was not merely for the provision of the Supporting Documents and the Plaintiff could have commenced these proceedings in any event, even if the Defendant provided the Supporting Documents prior to these proceedings;

(i) that the relationship between the Plaintiff and the Defendant was acrimonious and therefore the Defendant’s approach to the matter was reasonable.

8. The learned Judge was plainly wrong in drawing the conclusion “…had the Supporting Documents been produced by Shing prior to the commencement of the proceedings herein, Sum would have had no need to issue these proceedings”, given that the relief sought in the Originating Summons was not merely for the provision of the Supporting Documents.”

Discussion

9.With respect, I am of the view that Shing has failed to show a reasonable prospect of success in his appeal by relying upon the grounds as set out in the Draft Notice of Appeal. 

(1)  I have set out the reasons why I considered that this case is within the third category of the principles in the Re Buckton case, and why I considered that there should be a costs order in favour of Sum and against Shing personally in §12 of the Main Decision.  Having considered all the grounds of appeal proposed by Shing, in my view, Shing has not addressed in what way it can be said that this Court was plainly wrong in the analysis as set out in §12 of the Main Decision.

(2)  As set out in §10 of the Main Decision, in accordance with the Court of Final Appeal’s decision in Cheng Pui Yuen v Worldcup Investments Inc^[9], to determine costs in administration proceedings is an exercise of judicial discretion, with reference to the principles and based upon the particular circumstances of the case before the court.  Each case would depend upon its own facts.  In order to impeach the exercise of discretion as set out in the Main Decision, Shing has to point out that this Court has misunderstood the law or the evidence, or the exercise of discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.  I am not persuaded that Shing has shown a reasonable prospect of success in overcoming this high hurdle.

(3)  As to Ground 5, I am not persuaded that I was plainly wrong in the analysis as set out in §12(5) of the Main Decision.

(4)  As to the matters set out under Ground 7(a) to (d), those matters have been set out in §4 of the Main Decision, and I have taken the same into account.

(5)  As to the costs incurred by Shing in preparing the Supporting Documents and providing the same to Sum (see Ground 7(d) and (e)), the matter has been addressed in §17 of the Main Decision.

(6)  I do not accept Ground 7(f).  In the two offers made by Shing, Shing proposed that there should be no order as to costs of these proceedings.  However, under the costs order made in the Main Decision, Shing would have to bear 80% of the costs of these proceedings.

(7)  Ground 7(h) has been addressed in §12(4) of the Main Decision.

(8)  In §12(1)(c) of the Main Decision, this Court said:

“Sum made a request for the Supporting Documents on 5 December 2022, and repeated the request on 13 January 2023 (assuming that Shing did not receive Sum’s solicitors’ letter dated 13 December 2022, and Shing only came to be aware of the contents of Sum’s solicitors’ letter dated 3 January 2023 by reading the Chinese translation of the same enclosed in Sum’s solicitor’s letter dated 13 January 2023). From the time when P made the request for the Supporting Documents (ie 5 December 2022) to the time when P issued the OS and commenced these proceedings (ie 21 February 2023), around 2½ months lapsed. During these 2½ months, Shing did not provide the Supporting Documents to Sum, nor requested for time to prepare the Supporting Documents. There is no explanation from Shing as to why he did not do so in these 2½ months. There is also no suggestion from Shing that a period of 2½ months would not be sufficient for him to prepare the Supporting Documents with reasonable diligence.” (Emphasis added)

Ground 7(g) and (i) cannot constitute any basis upon which it can be said that my ruling in §12(1)(c) of the Main Decision is plainly wrong.  As a matter of fact, the points made in §12(1)(c) of the Main Decision have not been addressed by any evidence from Shing.

10.Having considered all the grounds of appeal proposed by Shing, I am not satisfied that by those grounds collectively, or by any of the grounds individually, Shing has demonstrated a reasonable prospect of success in his intended appeal.  I also do not see any other reason in the interests of justice why the appeal should be heard.  Accordingly, the Summons must be dismissed.

11.Costs should follow the event.  Sum seeks indemnity costs.  In my view, there is no sufficient justification for indemnity costs in this application. Costs would be summarily assessed on party and party basis.

Disposition

12.I dismiss the Summons.

13.Costs of the Summons be paid by Shing personally to Sum forthwith, and those costs be summarily assessed at HK$50,000.

14.I thank both counsel for the assistance provided to the Court.