Christine Ruth Ong Chai Hoon and Others v. Lam Kin Chung and Others

HCA 1793/2012

[2026] HKCFI 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1793 OF 2012

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BETWEEN

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DECISION

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Introduction

1.On 29 August 2025, I handed down the judgment in this action: see [2025] HKCFI 3857. I shall adopt the defined terms used in the judgment below. 

2.I made a costs order nisi that the plaintiffs do pay the costs of (1)  KC Lam and eBiz and (2)  Tommy Lai in this action, including all reserved costs, in each case to be taxed on an indemnity basis if not agreed, with a certificate for two counsel: see para 672.

3.By summons dated 12 September 2025, the plaintiffs seek a variation of the nisi order and ask for costs to be taxed on a party and party basis or, alternatively, on a common fund basis.

4.By consent of the parties, the summons is dealt with by paper disposal.  Both the plaintiffs and KC Lam and eBiz lodged written submissions as directed.  Notwithstanding his consent to the directions, Tommy Lai has not lodged any written submissions.

Legal principles

5.The principles governing the grant of costs on an indemnity basis are well-established: see the Court of Final Appeal’s discussion in Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004)  7 HKCFAR 114, paras 14 to 18; and the summary in Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020)  23 HKCFAR 74, [2020] HKCFA 2, para 4.  The same principles are also relevant for common fund costs:

(1)  In certain circumstances, costs may be awarded on a more generous than usual basis of taxation so as to achieve a fairer result.

(2)  It is for the receiving party to show that the case has some special or unusual feature. 

(3)  Such features are not confined to an ulterior motive, an improper purpose, deception or underhand conduct on the part of the paying party.

(4)  Neither the attributes of the parties nor the character of the proceedings are irrelevant to the question of whether a more generous than usual basis of taxation should be ordered.

(5)  The discretion to order a more generous than usual basis of taxation is not to be fettered or circumscribed beyond the requirement that such taxation be ordered only when it is appropriate to do so.

(6)  As to that, the grounds on which a more generous than usual basis of taxation is to be ordered must be connected with the case.  That extends to – but no further than to – any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation.

The plaintiffs’ arguments

6.The plaintiffs contend that an indemnity costs order is not appropriate for this case as there is no special or unusual feature to justify the same.

7.It is acknowledged that they made serious allegations of fraud against the defendants.  It is also acknowledged that adverse factual findings were made against the plaintiffs.  However, the following point is highlighted on their behalf.  In every case where there is a material dispute of fact, the court is bound to prefer one party’s account.  Such a finding, without more, is not a special or unusual feature making indemnity costs appropriate: see Kao, Lee Yip (a firm)  v Midland Realty International Ltd HCA 2153/2007, 31 March 2010, para 18.

8.The plaintiffs emphasise that they had no ulterior wicked motives or improper purposes for bringing the action.  There is nothing to suggest that the 11 of them from Singapore banded together and specifically targeted the defendants by fabricating baseless claims and bringing spurious proceedings in a foreign court.  Their case was based on extensive contemporaneous written evidence.  The plaintiffs themselves spent significant time, costs and efforts to pursue the action, which was their genuine attempt to seek redress as victims of a fraudulent scheme.

9.As to the court’s finding that some of the plaintiffs’ evidence was retrospectively constructed without personal recollection, it should be remembered that the plaintiffs each had their own individual cases relying on different heads of Fraudulent Misrepresentations in their specific circumstances.  It is not a case where they conspired to put forward a perfect identical case of fraud.  Some of the plaintiffs might have made mistakes and adopted others’ evidence without their own personal recollection. But the foundation of their claims were still fundamentally rooted in what they considered to be the genuine personal recollection of the other plaintiffs.

10.As to delay, the plaintiffs say that it was not inordinate, but was justified, and cannot be solely attributed to them.  It is emphasised that there were 11 plaintiffs, each with his or her own unique individual circumstances, there were voluminous documents which were not immediately available but had to be collected, collated, organised and understood, and instructions had to be individually gathered and confirmed.  In any event, both sides contributed to the length and complexity of the proceedings.  Hence, there is no special or unusual feature arising from the long time it had taken to bring the action to trial, which justifies an indemnity costs order.

Discussion

11.I am of the view that there are special features which justify granting indemnity costs in the present case. 

12.In addition to holding that the evidence of KC Lam and eBiz and that of Tommy Lai was to be preferred to the plaintiffs’ (see para 646), I also reached a number of conclusions on the evidence which, when taken as a whole, would take this action out of the norm and weigh heavily in favour of an indemnity costs order.

13.First, I found that the Revenue Misrepresentation, an essential part of the plaintiffs’ case, was directly contradictory to the case which was pleaded in their original pleadings and that cast serious doubt on the overall credibility and reliability of the plaintiffs’ evidence: see paras 520 and 543.

14.Second, I found that the False IPO Notification, (again)  a very important part of the plaintiffs’ case, was incoherent and this considerably undermined the plaintiffs’ case as a whole: see para 558.

15.Third, I found that the plaintiffs’ case against Tommy Lai was not even made out on their own evidence.  As revealed in their oral testimony, their case against him was not properly pleaded, and their evidence fell far short of establishing fraud against him.  I remarked that it could be said that their case against Tommy Lai was disproved by their own evidence: see paras 570 to 571.

16.Fourth, I found that the plaintiffs had engaged in a “collective construction exercise”.  In many instances, they did not actually remember the facts about which they were giving evidence, but retrospectively constructed a case based on information and documents in the possession of other plaintiffs.  Together, they adjusted their evidence in order to present what they thought would be the most convincing case to the court, as opposed to the true facts within their own knowledge.  I found that there were ample materials before the court which showed that some of the evidence, which went to the crux of some of the Fraudulent Misrepresentations, was based on such constructed evidence: see paras 579 and 591.

17.Allegations of a serious nature, such as those of fraud, should not be lightly made and should only be advanced on the strength of a sufficient evidential basis.  In the present action, the plaintiffs were accusing the defendants of perpetrating the Fraudulent Scheme and deceiving them of sums totalling about HK$24 million.  They persisted with these allegations over a period of 11 years and all the way to the trial, which lasted 27 days.  These serious accusations impinging on their integrity and reputation had been hanging over the heads of KC Lam and Tommy Lai all these time.  At the trial, the plaintiffs’ evidence fell far short of coming up to proof.  As found by the court, essential parts of their case were untenable. The collective construction exercise in which they engaged was plainly impermissible and egregious litigation conduct.

18.In my view, all these matters amount to special circumstances which make it appropriate to order the plaintiffs to pay indemnity costs.

19.In light of this conclusion, it is unnecessary to consider the separate issue of delay, which I referred to in the judgment. I would order indemnity costs even if the plaintiffs are not to be held responsible for the long time it took to bring the action to trial. 

Conclusion

20.For the above reasons, I dismiss the plaintiffs’ summons and order that the costs order nisi be made absolute.

21.I further make a costs order nisi that the plaintiffs pay the costs incurred on the summons by KC Lam and eBiz and Tommy Lai, to be taxed on a party and party basis if not agreed.  KC Lam and eBiz have already lodged a statement of costs.  If Tommy Lai wishes to claim costs of the summons, he should lodge his statement of costs within seven days of the date of this decision.  The plaintiffs shall have seven days after that to lodge a list of objections, which should be within two pages, in respect of each statement of costs.  The costs will be summarily assessed on the papers after the deadline.

Written submissions by Mr Sim Jing En, instructed by Li & Partners, for the 1^st to 11^th plaintiffs

Written submissions by Mr Justin Lam, instructed by DeHeng Law Offices (Hong Kong)  LLP, for the 1^st and 4^th defendants

The 2^nd defendant acted in person and did not lodge any written submissions