Man Choi Yuk v. Jim Yiu Ming and Another

[English Translation – 英譯本]

HCMP 508/2023

[2024] HKCFI 3218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 508 OF 2023

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JUDGMENT

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Introduction

1.The plaintiff, Madam Man Choi Yuk, is unrepresented and appears in person in the present case.

2.On 31 March 2023, she commenced the present case by way of an originating summons (“the Originating Summons”) against the 1^st and 2^nd defendants for the costs-only proceedings, in which she disputed the amount of costs she was charged by the solicitors’ firm then operated by the 1^st and 2^nd defendants.

3.On 28 May 2024, the 1^st and 2^nd defendants took out the present summons, requesting the court to strike out the Originating Summons and dismiss the claim in the present action under Order 18 rule 19 of the Rules of the High Court, Cap. 4A (“this striking-out application”).

Factual background

4.The plaintiff is a 75-year-old lady.

5.The 1^st and 2^nd defendants were partners of the former Jim & Co., Solicitors (“Jim & Co.”). On 20 June 2019, The Law Society of Hong Kong intervened in the practice of Jim & Co. and appointed Chui & Lau Solicitors as the intervention agent (“the intervention agent”). At present, the 1^st defendant is a solicitor who is in practice subject to conditions.

6.The plaintiff was also represented by Jim & Co. in three other cases involving her, namely DCCJ 5162/2017 (“the 5162 Case”), DCMP 3180/2015 (“the 3180 Case”)[1] and FLCC 447/2018 (“the 447 Case”).[2]

DCCJ 5162/2017

7.The details of the trial pertaining to the 5162 Case can be found in the decision handed down by me on 30 May 2018 sitting as a District Judge (as I then was) (“the 5162 Decision”).

8.In that case, the plaintiff sued the Lands Department and was at that time represented by the 1^st defendant as her solicitor.

9.In essence, the 5162 Case concerned a piece of land registered in the Land Registry as San Tin Lot No 702 in Demarcation District No 102 in Yuen Long, New Territories (“the disputed land”).

10.The Department of Justice sought to strike out the plaintiff’s statement of claim. At that time, I found that the plaintiff’s claim had clearly disclosed no reasonable cause of action and ordered that her statement of claim be struck out with costs against the plaintiff.

11.These were my reasons: (1) Any issue relating to ownership of land was a private dispute. (2) The allegation of erroneous record against the Lands Department was not specific enough. Any error ought to be dealt with by an action in public law. The plaintiff had been aware of the said error back in 1988, and therefore, the limitation period for the action on tort has expired. (3) The plaintiff’s claim should have been proceeded with by way of judicial review rather than an action in private law. (4) The 5162 Case should have been resolved in the 3180 Case.

12.After the hearing on 27 April 2018, the plaintiff, through the 1^st defendant, filed a notice of discontinuance.

13.In the 5162 Case, the plaintiff had paid Jim & Co. HK$55,000 being the costs of the case. Later, because of having the judgment made against her, the plaintiff also had to pay (and has already paid) the Department of Justice the costs in the sum of HK$118,139.09.

DCMP 3180/2015

14.The 3180 Case was referred to at paragraph 3 of the 5162 Decision. This action was between Mr Man Kai Tak (“Mr Man”) and the plaintiff herein concerning the possessory title of “the disputed land”. In that action, Mr Man disputed the possessory title of the land whereas the plaintiff counterclaimed that she had already acquired the ownership of the said land through adverse possession.

15.The 1^st defendant was the solicitor acting for the plaintiff in that case. According to the 1^st defendant, the preparation of court documents was covered by the costs of the 3180 Case.

FLCC 447/2018

16.The 447 Case was a criminal case where the plaintiff was a prosecution witness and the victim. It was unrelated to either the 5162 Case or the 3180 Case. The plaintiff was attacked and injured. According to the 1^st defendant, costs were incurred in the 447 Case because his firm had prepared a letter on the plaintiff’s behalf to the Department of Justice, in which the plaintiff requested that the magistrate reviewed the sentence.

The bill of costs

17.On 5 August 2021, the 1^st defendant sent to Lau Wing Keung, a solicitor from the intervention agent, a bill of costs covering the 5162 Case, the 3180 Case and the 477 Case (“the Bill”) by email. The 1^st defendant told the court that over 70 percent of the costs billed pertained to the 3180 Case and the 477 Case.

18.On 14 November 2022, the intervention agent, for the very first time, gave the plaintiff the Bill issued by the 1^st defendant, demanding the plaintiff to settle the sum of HK$39,570.[3]

19.On 31 March 2023, the plaintiff took out the Originating Summons, intending to seek the following orders:

(a)  Extension of time for assessing the 1^st defendant’s calculations in the Bill;

(b)  Dismissal of the Bill, declaring that it was newly created with untrue content; and

(c)  Refund of the costs of HK$55,000 which had already been paid by the plaintiff.

20.The plaintiff’s grounds are as follows. In respect of the costs relating to the 5162 Case, the 3180 Case and the 477 Case, the plaintiff and the 1^st defendant had already reached an agreement on costs much earlier, namely the costs would be based on an “all-inclusive lump sum” as agreed instead of charging on a time-spent basis. Therefore, the bill of costs that came about for the first time after these few years was obviously newly created and its content did not accord with the actual situation. Furthermore, as far as the 5162 Case was concerned, the 1^st defendant had been negligent in bringing the action against the Lands Department and costs were incurred. As a result, the plaintiff had to pay not only the costs to the Department of Justice, but also her own costs to Jim & Co. as well. Under such circumstances, it was contended that not only should she not be liable for the costs incurred in the 5162 Case, she should even be refunded the HK$55,000 already paid by her.

The present application

21.On 28 May 2024, the 1^st and 2^nd defendants made an application by summons on the grounds below[4]:

“Striking out the plaintiff’s originating summons in the present case and dismissing this action on the following grounds:-

(a) It discloses no reasonable cause of action;

(b) It is scandalous, frivolous or vexatious;

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the court;

or the Court of First Instance of the High Court does not have the jurisdiction to hear the plaintiff’s claim which involves a sum within the jurisdiction of the District Court pursuant to section 32 of the District Court Ordinance, Cap 336 of the Law of Hong Kong; … ”

22.On 19 June 2024, Master Andy Ho directed that the Court of First Instance of the High Court had the jurisdiction to hear the plaintiff’s claim.

Legal principles on striking out a summons

23.The legal principles governing the defendants’ striking-out application are well-established. Order 18 rule 19 of the Rules of the High Court, Cap 4A of the Laws of Hong Kong, provides that:

“(1) The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) […]

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.”

24.The court will exercise its power to strike out pleadings only in plain and obvious cases: see Galsworthy Ltd. v Liu Por Appointed to Represent the Estate of Liu Cheng Chan, deceased and Ors [2019] HKCFI 2397, paragraphs 233 to 237.

25.In considering a striking-out application, there should be no trial upon affidavit by the court, and disputed facts should be taken in favour of the party sought to be struck out (i.e. the plaintiff herein): see Polyline Development v Ching Lin Chuen and Ors [2021] HKCFI 483, paragraph 10 and Hong Kong Civil Procedure 2025, Volume 1, paragraph 18/19/4.

Discussion

26.The Originating Summons taken out by the plaintiff is, in my view, not without basis, nor is it an abuse of the process of the court. As shown by the incontestable documentary evidence, the plaintiff’s assertion that the Bill was sent out for the very first time by Jim & Co through the intervention agent only after the proceedings had been going on for years is true, and can clearly support her case. In my view, it is obvious that the Bill was put in by the 1^st defendant subsequently (and after years) as an afterthought. Hence, the court will not, in such circumstances, easily exercise its power to strike out the plaintiff’s request for having her former solicitor’s bill of costs vetted by the court.

27.For the reasons set out below, I dismiss the 1^st and 2^nd defendants’ summons of the present striking-out application:

(a)  First, it is my view that the defence of limitation period put forward by the 1^st and 2^nd defendants does not apply to the extension of time for assessing the calculations in the present case. According to the plaintiff, she had not received any demand note for payment due or bill of costs relating to the 5162 Case, the 3180 Case and the 447 Case until 14 November 2022 (i.e. the date on which the intervention agent mailed the bill to the plaintiff). Thus, there is no limitation/time bar issue in the present case.

(b)  Second, as set out under Principle 4.06 in Chapter 4 of The Hong Kong Solicitors’ Guide to Professional Conduct (Volume 1), whether or not a client has set a limit for the fee, the solicitor should on an appropriately regular basis tell the client the approximate amount of the costs to date, as follows:

“Commentary:

1. A solicitor should monitor the position regarding costs which have accrued to date. The keeping of adequate time records will assist.

2. Failure to keep a client informed, so far as possible of the costs incurred, could prejudice a solicitor’s ability to recover a fair and reasonable fee for the work done.” (emphasis added)

The 1^st and 2^nd defendants were obliged to tell the plaintiff about the position regarding the costs on a regular basis. However, in the above several cases handled by Jim & Co, it is apparent that the 1^st and 2^nd defendants have failed to regularly inform the plaintiff of the costs accrued. At least, the documents disclosed by the 1^st and 2^nd defendants in the present case do not support that they have done so.

(c)  Third, the 1^st defendant, being a solicitor, has on more than one occasion incorrectly stated case numbers in different documents, which causes me to doubt his credibility and the accuracy of his record in relation to the Bill. Here are some examples:

(i)  The 1^st defendant wrote “DCMP 3180/2017” on the Bill;

(ii)  The 1^st defendant wrote “DCMP 3180/2017” at paragraph 3(a) of his affirmation in Chinese;

(iii)  The 1^st defendant wrote “DCMP 3180/2016” at paragraph 8 of his skeleton submissions;

(iv)  The 1^st defendant wrote “FLCC 446/2018” at paragraph 8 of his skeleton submissions;

(v)  The 1^st defendant wrote “DCMP 3168/2015” at paragraph 12 of his affirmation in English.

In fact, the correct case numbers should be DCMP 3180/2015 and FLCC 447/2018. The case numbers referred to in the Bill do have material effects on the present case. Mistakes such as these are absolutely unacceptable.

28.For the above reasons, I find that the 1^st and 2^nd defendants have failed to prove the present application up to the standard legally required. Hence, I order that the 1^st and 2^nd defendants’ striking-out application by summons be dismissed.

Conclusion and costs

29.For the above reasons, I:

(1)  dismiss the present striking-out application;

(2)  make a costs order nisi that the 1^st and 2^nd defendants do pay the plaintiff costs of this striking-out application. Since the defendants’ application is totally devoid of merit, the costs shall be summarily assessed on an indemnity basis.

30.The said costs order nisi will become absolute unless any party applies to vary the same within 14 days. The parties may further seek my written direction on assessment of costs thereafter.

31.Mindful of the fact that the plaintiff is unrepresented and appears in person, and the 1^st defendant is familiar with and proficient in writing and speaking Chinese, the proceedings were conducted in Cantonese on the day of hearing. Since the 2^nd defendant cannot write or understand Chinese, a court interpreter was present to provide interpretation to him at the same time on that day. The 2^nd defendant also consented to such an arrangement on that day. Taking all these together, I decide that this judgment should be written in Chinese. The 1^st defendant, being the 2^nd defendant’s former partner, may translate my judgment to the 2^nd defendant. In any event, if necessary, the 2^nd defendant may contact my clerk so that the court can make the appropriate arrangement for a court interpreter to orally translate the content of the judgment to him.

The Plaintiff was unrepresented and appeared in person

The 1^st and 2^nd Defendants were unrepresented and appeared in person

Translated by the Court Language Section of the Judiciary and vetted by Mr Walter Lee, solicitor.