Dr. Leung Kam Chung Kenneth v. Ms. Chen Hiu Yin

HCAL 1220/2023

[2026] HKCFI 459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1220 OF 2023

________________________

________________

__________________

D E C I S I O N

__________________

A. Introduction

1.Once again, with respect, the Applicant has approached the Court on a basis which is fundamentally misconceived.

2.The underlying proceedings, and the appeal, were commenced and maintained by the Applicant against the Putative Respondent (“Creditor”), in her capacity as a civil servant.  Throughout, the Creditor has been represented – as would be expected – by the Department of Justice (“DOJ”).

3.On 20 September 2023, I dismissed the Applicant’s application for leave to apply for judicial review: see [2023] HKCFI 2359.  I ordered the Applicant to pay the Creditor’s costs, which on 6 October 2023 I summarily assessed at HK$50,000 (“Costs Order”).  The Costs Order remains extant, and unpaid.

4.Though not central to the present matter, it can be noted that the Applicant appealed my Decision to the Court of Appeal, which dismissed the appeal on 25 June 2024, with a further costs order made against him summarily assessed at HK$66,260: see [2024] HKCA 565.  The Applicant’s application for leave to appeal to the Court of Final Appeal was dismissed on 20 November 2024, with costs assessed at HK$14,416: see [2024] HKCA 1063.  At the hearing today, the Applicant informed me that a further application to the Court of Final Appeal was also dismissed, but with no order as to costs.

B.     The Charging Order Absolute

5.On 3 November 2025, Master Elaine Liu made a charging order nisi (notice to show cause), ordering that unless sufficient cause to the contrary be shown at a hearing on 23 December 2025, the Applicant’s interest in certain properties registered in the Applicant’s sole name should stand charged with payment due as a result of the Applicant’s failure and/or refusal to settle the amount due under the Costs Order.

6.On 23 December 2025, the Applicant attended the hearing and made submissions before Master Thomas Kwong.  At the end of the hearing, the Master made a Charging Order Absolute.

7.Both the charging order nisi and the Charging Order Absolute were made by reference to the affirmation of Ms Kwong Yuen Shan, Government Counsel of the DOJ, filed on 24 October 2025, in which she affirmed that she was duly authorised to make the affirmation on behalf of the Creditor.

8.The Charging Order Absolute also made reference to the affirmation of Ho Yiu Kwan filed on 16 December 2025, which was the affirmation of service of the charging order nisi and Ms Kwong’s affirmation upon the Applicant. sent by post to the usual and last known address for service in the action.

9.The Charging Order Absolute was made pursuant to the power and rules in sections 20, 20A and 20B of the High Court Ordinance Cap 4 (“HCO”) and Order 50 rule 3 of the Rules of the High Court Cap 4A (“RHC”).

10.Those sections provide as follows:

20.     Power of Court of First Instance to impose charging order

(1)     Where, under a judgment or order of the Court of First Instance, a person (in this section and in sections 20A and 20B referred to as the debtor) is required to pay a sum of money to another person (in this section and in section 20A referred to as the creditor) then, for the purpose of enforcing that judgment or order, the Court of First Instance may make an order imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order.

(2)     An order under subsection (1) is referred to in this Ordinance as a charging order.

(3)     In deciding whether to make a charging order the Court of First Instance shall consider all the circumstances of the case and, in particular, any evidence before it as to—

(a)     the personal circumstances of the debtor; and

(b)     whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order.

(4)     This section shall apply to a judgment, order, decree or award however called of any court or arbitrator or umpire, including any foreign court or foreign arbitrator or umpire, which is or has become enforceable, whether wholly or to a limited extent, as it applies to a judgment or order of the Court of First Instance.

20A.    Property which may be charged

(1)     Subject to subsection (3), a charge may be imposed by a charging order only on—

(a)     an interest held by the debtor beneficially—

(i)     in any asset of a kind mentioned in subsection (2) or

(ii)     under any trust; or

(b)     an interest held by a person as trustee of a trust (in this paragraph referred to as the trust), if the interest is in an asset of a kind mentioned in subsection (2) or is an interest under another trust and—

(i)     the judgment or order in respect of which a charge is to be imposed was made against that person as trustee of the trust;

(ii)     the whole beneficial interest under the trust is held by the debtor unencumbered and for his own benefit; or

(iii)     in a case where there are 2 or more debtors all of whom are liable to the creditor for the same debt, they together hold the whole beneficial interest under the trust unencumbered and for their own benefit.

(2)     The assets referred to in subsection (1) are—

(a)     land;

(b)     securities of any of the following kinds—

(i)     Government stock;

(ii)     stock of any body incorporated in Hong Kong;

(iii)     stock of any body incorporated outside Hong Kong or of any state or territory outside Hong Kong, being stock registered in a register kept at any place within Hong Kong;

(iv)     units of any unit trust in respect of which a register of the unit holders is kept at any place within Hong Kong; or

(c)     funds in court.

(3)     In any case where a charge is imposed by a charging order on any interest in an asset of a kind mentioned in subsection (2)(b) or (c), the Court of First Instance may provide for the charge to extend to any interest, dividend or other distribution payable and any bonus issue in respect of the asset.

(4)     In this section—

dividend(派息) includes any distribution in respect of any unit of a unit trust;

stock (證券) includes shares, debentures, loan stocks, funds, bonds, notes, any other securities issued by the body concerned, whether or not constituting a charge on the assets of that body and any rights or options to subscribe for or be allotted any of the foregoing; and

unit trust (單位信託) means any trust established for the purpose, or having the effect, of providing, for persons having funds available for investment, facilities for the participation by them, as beneficiaries under the trust, in any profits or income arising from the acquisition, holding, management or disposal of any property whatsoever.

20B.    Provisions supplementary to sections 20 and 20A

(1)     A charging order may be made either absolutely or subject to conditions as to notifying the debtor or as to the time when the charge is to become enforceable, or as to other matters.

(2)     The Land Registration Ordinance (Cap. 128) shall apply in relation to charging orders as it applies in relation to other orders or writs issued or made for the purpose of enforcing judgments.

(3)     Subject to the provisions of this Ordinance, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand.

(4)     The Court of First Instance may at any time, on the application of the debtor or of any person interested in any property to which the order relates, make an order discharging or varying the charging order.

(5)     In the case of a charging order registered pursuant to the Land Registration Ordinance (Cap. 128), if an order under subsection (4) discharging the charging order is made, the Land Registrar shall on the filing with him of a memorial and an office copy of such order, enter a discharge of such charging order on the register, and may issue certificates of such entry.

11.RHC Order 50 rule 3 provides that on the further consideration (as was performed by Master Thomas Kwong) the Court shall either make the order absolute, with or without modifications, or discharge it.

12.It is settled that the general principles governing the exercise of discretion to make a charging order are as follows:

(1)     The question whether a charging order nisi should be made absolute is one for the discretion of the Court.

(2)     The burden of showing cause why a charging order nisi should not be made absolute is on the judgment debtor.

(3)     For the purpose of the exercise of the Court’s discretion, there is in general no material difference between the making absolute of a charging order nisi on the one hand and a garnishee order nisi on the other.

(4)     In exercising its discretion, the Court has both the right and the duty to take into account all the circumstances of a particular case, whether such circumstances arose before or after the making of the order nisi.

(5)     The Court should so exercise its discretion as to do equity, so far as possible, to all the various parties involved, that is to say, the judgment creditor, the judgment debtor and all other unsecured creditors.

13.At the hearing before the Master, the Applicant argued that the Creditor had failed to file her own affirmation in support of the application for a charging order, and that the Government Counsel who filed the relevant affirmation, as legal representative of the Creditor, had failed to supply a letter of authorisation from the Creditor.  The Applicant argued that this rendered the application for the charging order fundamentally procedurally defective.  However, as already indicated, upon the relevant consideration, the Master made the Charging Order Absolute.

C.     The Present Appeal

14.Now, under RHC Order 58, the Applicant appeals to this Court against the Charging Order Absolute, relying on the same grounds as were argued before, but rejected by, the Master.

15.At the appeal hearing, the Applicant again acted in person.  The CreditorwasrepresentedbyMr Alvin Hor,ActingSeniorGovernmentCounsel.

16.In his Notice of Appeal and in his skeleton argument, the Applicant made the following submissions (in my summary of them):

(1)     The applications for costs and for the charging order were made by the Creditor, but she did not lodge her own affirmation in support.

(2)     The supporting affirmation was made by Ms Kwong Yuen Shan, Government Counsel, stating that she was duly authorised by the Creditor, but without providing “the upmost important Document of Letter of Authorisation” signed by the Creditor “as the crucial and indispensable evidence to prove that she was duly authorised”.

(3)     The absence of a letter of authorisation made Ms Kwong’s affirmation legally invalid.

(4)     Ms Kwong informed the Master at the hearing that she did not have a letter of authorisation, but the Master went ahead to make the Charging Order Absolute anyway, which was erroneous and in violation of standard legal requirements and practice.

(5)     The admission that there was no letter of authorisation meant that there was no doubt that the Creditor had not given any authorisation to Ms Kwong.

(6)     Ms Kwong also informed the Master that she had no instructions as to whether the Creditor remained an employee of the Hong Kong Government.

(7)     Whether the Creditor is an employee of the Hong Kong Government is important, and the Applicant’s internet search has not shown the Creditor is still so employed.

(8)     A question is also raised as to whether Ms Kwong committed perjury in her affirmation, in stating that she was authorised by the Creditor when there is no document to show so.

(9)     On an appeal from a Master to a Judge, the appellant has the “prerogative” to decide whether the appeal is a rehearing or should be treated as a first-time hearing.

(10)     On this appeal, the Applicant pursues the appeal as a review of the decision made by the Master on the evidence and arguments that were before him.

(11)     The Master gave no written judgment of the reasons for his decision, which is a breach of his official duty, and gives the impression that he was concerned that his decision and order may be erroneous and does not want his reasons to be exposed to sunlight.

(12)     Counsel of the DOJ has put words into the Master’s mouth by drafting sealed order.

(13)     Master Elaine Liu made the same mistake as Master Thomas Kwong when she made the charging order nisi.

(14)     There is doubt as to whether the affirmation of service was filed to the Court on 16 December 2025, as it was not mentioned during the hearing on 23 December 2025.

(15)     It is unexplained why there was delay in the steps seeking to enforce the Costs Order after it was made.

17.Orally, the Applicant repeated the essence of those submissions.  He argued (again in my summary):

(1)     The Appeal should be argued by reference to the evidence and arguments deployed before the Master, and the Applicant chooses not to have a rehearing.

(2)     Without a written authorisation, a person who initiates proceedings on behalf of another has no standing to do so.

(3)     The absence of a written letter of authorisation from the Creditor to Ms Kwong is a fundamental procedural defect, because Ms Kwong had no proper authority.

(4)     Proof of authorisation should be beyond reasonable doubt, and the Applicant has doubt as to whether Ms Kwong was in fact duly authorised as she affirmed.

(5)     The Creditor herself has said not one word in support of the application identifying her intention to seek the charging order.

(6)     This is a point the Court should take seriously.

(7)     Therefore, the application should be considered to have been made by Ms Kwong, not by the Creditor.

18.The Applicant also sought to raise other matters about the Creditor or the underlying dispute, which do not seem to me to have any bearing on the present appeal and need not be rehearsed.

19.I did not call on Mr Hor, but have had reference to the points made by him in his written skeleton submissions.

20.Having considered the written arguments and the oral submissions, this is my Decision.

D.     Analysis

21.Contrary to the suggestion advanced by the Applicant that he has some sort of “prerogative” or choice as to the procedure on appeal, it is in fact settled that an appeal from a Master to a Judge is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the Judge treats the matter de novo as if it came before him for the first time.  I adopt that approach.

22.I also adopt the approach set out above by reference to the statutory provisions and the governing principles.

23.The main thrust of the Applicant’s case on appeal is by repetition of the submission made to the Master about the lack of a written letter of authorisation.  It has no merit.  The Applicant has simply provided no evidence to substantiate any claim – or even to raise any properly based suspicion – that Ms Kwong was not authorised to act on behalf of the Creditor as she has affirmed.  In so far as the Applicant suggests that there must be a letter of authorisation for there to be valid authorisation, that is simply incorrect.  The wording used by Ms Kwong in her affirmation is the standard and proper wording used to identify that the affirmation is made for another person and with that person’s authorisation so to do.  There is no basis to doubt the affirmed evidence of a Government Counsel that the Creditor has authorised her (and the DOJ) to act as legal representative on her behalf, including in taking steps to enforce the costs awarded to her.

24.The making of the serious allegation of perjury – and even the floating of that possibility – is without any evidential basis whatsoever.  It is the sort of allegation that should never have been made by the Applicant, and I regret it says far more about the person making it than the person against whom it is made.

25.Nor has the Debtor provided any evidence to substantiate his suggestion that the Creditor is no longer employed by the Government.  In so far as it matters, which I doubt, I accept Mr Hor’s submission that an internet search actually readily reveals that the Creditor is currently on the Government Directory as a Health Inspector (Food Surveillance) of the FEHD.

26.As to whether the Charging Order Absolute should be made, I agree with the Master – whether assessing his decision, or by looking at the matter afresh as required – that such an order is appropriate to the circumstances of this case:

(1)     The Costs Order remains extant, and unpaid.

(2)     Under the Costs Order, the Applicant was required to pay costs summarily assessed at HK$50,000, to which interest has since accrued.

(3)     The Costs payment was to be made to the Creditor, who was and is still represented by the DOJ.

(4)     The charging order nisi was made, and the Charging Order Absolute is made, against property in the form of land or real property owned by the Applicant, falling within section 20A(2) of the HCO.

(5)     The Applicant has not put forward any personal circumstances to be balanced against the interests of the Creditor, or otherwise sought to show how the enforcement of the Costs Orders would be prejudicial to him.

(6)     Indeed, other than the meritless challenge to the Creditor’s authorisation of Ms Kwong, none of the factual matters put forward in support of the charging order has been challenged.

(7)     The Applicant has simply failed to discharge his burden to show cause why a charging order absolute should not have been made, or should not now be made.

(8)     Taking into account all the circumstances of this particular case, whether arising before or after making of the charging order nisi, it seems to me absolutely plain that the Court should exercise its discretion to make the Charging Order Absolute, because that does equity to all the parties involved.

27.As to the various other points which the Applicant has sought to raise, they strike me as “clutching at straws” in his continued attempt to avoid the costs consequences of his failed judicial review application, as decided by my Decision (and which was upheld on appeal).

28.First, because this is an appeal heard de novo, it does not particularly matter what the Master’s reasons were for his decision.  Nevertheless, as has been explained to the Applicant in correspondence, the Master gave his reasoned decision orally at the hearing at which the Applicant was himself present, and the Applicant was granted permission to obtain the transcript of that hearing where the reasons for the decision would be set out (on the written page).

29.Secondly, there is no basis to suggest anything improper in the drafting or sealing of the Master’s Charging Order Absolute, which is in standard form and fully reflects who was heard, what was read, and what was ordered.

30.Thirdly, there is similarly no basis to criticise the earlier decision of Master Elaine Liu, and it was in any event overtaken by the decision of Master Thomas Kwong made at the hearing at which the Applicant himself made submissions.

31.Fourthly, the Applicant’s doubt as to whether the affirmation of service was filed on 16 December 2025 is another non-point.  He himself accepts that the affirmation was made on 15 December 2025, because it was countersigned by the Commissioner of Oaths.  There is no basis to raise any proper doubt as to whether it was filed at Court on the date it bears.  Service was also obviously effective, because the Applicant attended the hearing of which he was given notice by that service.  Because he attended the hearing, there was no need for any person to have mentioned the affirmation of service.

32.Lastly, the timing of the making of the application for a charging order seems to me to be irrelevant to the discretionary exercise in this case as to whether or not such an order should be made.  The Applicant makes no suggestion of prejudice arising from that timing in any event.  In so far as the Applicant might not like the accrual of interest, that is merely the consequence of his choice to refuse to obey the Court’s order as to the payment of costs.

E.     Result

33.The Applicant’s appeal is dismissed.  The Charging Order Absolute shall stand.

34.As to costs, I see no reason why in the exercise of my discretion I should not order the Applicant to pay costs.

35.I decline to send the matter to a taxation, as requested by the Applicant, as that is unnecessary and disproportionate.  I accept Mr Hor’s submission that the costs payable should be summarily assessed – to which I shall return in a moment.

36.Lastly, I would add the following.  The Applicant seems to be acting under the misapprehension that he does not need to pay the costs I ordered unless and until someone takes enforcement steps against him.  It lies ill in the Applicant’s mouth to complain about any alleged failure to do things properly, at the same time as he continues to flout Court orders requiring him to pay costs.  Irrespective of any concern or doubt which the Applicant may hold as to the intention on the part of the Creditor that the Applicant should pay the costs ordered, I will repeat that it is plainly my intention that the Applicant pay the costs I ordered.

37.Therefore, I would respectfully suggest that instead of continuing to run up costs, and to cause delay which will only lead to added interest, by taking unmeritorious technical or irrelevant points, the Applicant should simply now pay the costs which I have ordered.

[Submissions on summary assessment of costs]

38.The Statement of Costs for Summary Assessment seeks the total sum of HK$23,786.  Having given the Applicant the opportunity to state any objections, I accept that it is appropriate to allow the claimed sum almost in full.  Therefore, the assessed sum of HK$20,000 must be paid by the Applicant forthwith.

The applicant, acting in person

Mr Alvin Hor, Senior Government Counsel (Ag.), of the Department of Justice, for the putative respondent