Norman Guy Donald and Another v. Li Pak Huen in His Capacity As Executor of the Estate of Li Pak Wing and Others

CACV 126 & 137/2024, [2025] HKCA 1064

On Appeal From [2024] HKCFI 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 126 AND 137 OF 2024

(ON APPEAL FROM HCMP NO 1836 OF 2017)

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BETWEEN

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(Heard together)

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DECISION

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Hon Chow JA (giving the Decision of the Court):

1.This is the Court’s decision at the first stage of the Plaintiffs’ application for a wasted costs order against the 2^nd, 3^rd and 11^th Defendants’ leading and junior counsel and solicitors (collectively “the Legal Representatives”).

2.The basic facts of this case and the Court’s reasons for dismissing the 2^nd, 3^rd and 11^th Defendants’ appeals and various applications made by them are fully set out in the Court’s Reasons for Judgment dated 31 October 2025, and will not be repeated here.

3.At the conclusion of the hearing of the said appeals and applications on 12 June 2025, the Plaintiffs’ leading counsel made an oral application for a wasted costs order against the Legal Representatives.  The grounds of the application were that the Legal Representatives (i)  adopted, maintained or pursued, and/or introduced additional, grounds of appeal which were wholly unsustainable, including grounds which raised very serious but baseless allegations against both the trial judge as well as the Plaintiffs, being professional administrators appointed by the Court, and (ii)  made, on behalf of the 2^nd, 3^rd and 11^th Defendants, applications to amend or further amend their respective notices of appeal and/or seek leave to adduce fresh evidence at a late stage of the proceedings when those applications were clearly unmeritorious.  Leading counsel for the Plaintiffs submitted that in so conducting themselves, the Legal Representatives were guilty of improper or unreasonable act, or misconduct or default, resulting in unnecessary costs being incurred by the Plaintiffs to resist those wholly unmeritorious or unsustainable appeals and applications.

4.Pursuant to the Court’s directions:

(1)  leading counsel for the 2^nd, 3^rd and 11^th Defendants filed written submissions dated 19 August 2025;

(2)  junior counsel for the 2^nd, 3^rd and 11^th Defendants filed written submissions dated 19 August 2025 and an affirmation dated 20 August 2025; and

(3)  a principal of the 2^nd, 3^rd and 11^th Defendants’ solicitors having the conduct of the proceedings on their behalf filed an affirmation dated 21 August 2025,

to explain or contend why the application for a wasted costs order against them should not be allowed to proceed further.

5.We have considered the Legal Representatives’ aforesaid submissions and affirmations and are satisfied that the criteria in Order 62, rule 8B(1)(a)  of the Rules of the High Court, Cap 4A, have been met, and the application for a wasted costs order against them should proceed to the second stage under Order 62, rule 8B(1)(b)  in relation to the following matters:

(1)  Pak Huen’s application by summons dated 15 May 2025 for leave to amend his notice of appeal;

(2)  Pak Huen’s application by summons dated 27 May 2025 for leave to adduce new evidence;

(3)  Tsang’s application by summons dated 12 May 2025 for leave to amend his supplementary notice of appeal;

(4)  Ground 10 of Pak Huen’s appeal (dealt with at §59 of the Reasons for Judgment); and

(5)  Grounds 2A-2B, 3A-3C, and 7 of Tsang’s appeal (dealt with at §§70-71, 74-75, 81 of the Reasons for Judgment).

6.In view of the fact that the question of whether the Court should make a wasted costs order against some or all of the Legal Representatives will have to be fully considered at the second stage, it would not be appropriate for us to further examine the merits of the application in this decision.

7.In relation to the conduct of the second stage of the application, junior counsel for the 2^nd, 3^rd and 11^th Defendants submits that, bearing in mind (i)  consideration of proportionality, (ii)  the summary nature of the application, and (iii)  that detailed evidence (insofar as he is concerned)  has already been adduced, the application should be dealt with on paper.  We are minded to deal with the application on paper, but shall give leading counsel and solicitors for the 2^nd, 3^rd and 11^th Defendants an opportunity to apply for an oral hearing if they wish to do so.  Accordingly, the Court gives the following directions:

(1)  the second stage of the Plaintiffs’ application for a wasted costs order against the Legal Representatives shall be dealt with on paper without an oral hearing;

(2)  leave to each of the Legal Representatives to file and serve one final round of evidence and/or submissions within 35 days from the date of this Decision;

(3)  leave to any of the Legal Representatives to apply for a variation of the above directions and/or further or additional directions by letter within 14 days from the date of this Decision;

(4)  subject to any further directions as may be given by the Court, the Plaintiffs shall be excused from taking any further part in the application for a wasted costs order against the Legal Representatives; and

(5)  costs reserved.

Mr Eugene Fung SC leading Ms Bonnie Y K Cheng, instructed by Stephenson Harwood, for the Plaintiffs

Mr Y C Yeung, leading counsel for the 2^nd, 3^rd and 11^th Defendants in the appeals

Mr Forest Fong, junior counsel for the 2^nd, 3^rd and 11^th Defendants in the appeals

C M Chow & Company, solicitors for the 2^nd, 3^rd and 11^th Defendants in the appeals