Chan Shu Lam v. Chan Chau Wah

CAMP 208/2025, [2026] HKCA 609

On an Intended Appeal from [2025] HKCFI 3338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 208 OF 2025

(ON AN INTENDED APPEAL FROM HCAP NO. 6 OF 2020)

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JUDGMENT

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Hon K Yeung J (giving the Judgment of the Court):

A. Introduction

1.This is the Plaintiff’s renewed application by Summons of 20 October 2025 (“Renewed Leave Summons”) for leave to appeal against the costs order (“Costs Order”) made by DHCJ Alan Kwong (“Judge”) on 4 August 2025 (“Costs Decision”, [2025] HKCFI 3338) in relation to the costs of a 6-day trial (the “Trial”) which he had presided over. 

B.     Background Facts

2.The Plaintiff and the Defendant were respectively the son and daughter of the Deceased, their late mother.  She passed away on 26 September 2019, at the age of 90.  The major asset of the Deceased’s estate (the “Estate”) was a residential flat (“Property”) registered under her name.  The Trial involved two main issues: the “Probate Issue” and the “Beneficial Ownership Issue”.

3.The Probate Issue concerned the validity of a will made in 2019 (“2019 Will”).  It named the Plaintiff as the sole executor and beneficiary of the Estate.  Upon the Deceased’s death and shortly thereafter, the Defendant was granted probate on the strength of a will made earlier in 2017 (“2017 Will”).  The 2017 Will named the Defendant as the sole executrix and beneficiary.  By the present action, the Plaintiff asked the Court to revoke the probate already granted to the Defendant, propound the 2019 Will, and to declare the 2019 Will as the Deceased’s true last will.  The Defendant contended that the Plaintiff had failed to show that the Deceased was of testamentary capacity, and/or that she knew and understood the contents of the 2019 Will when she executed the same.

4.For the Beneficial Ownership Issue, the Defendant contended that she had 15.25% beneficial interest in the Property under a common intention constructive trust.

5.The Judge handed down his Judgment on 6 June 2025 (the “Trial Judgment”, [2025] HKCFI 2338).  Broadly speaking, the Plaintiff succeeded in the Probate Issue, and the Defendant succeeded in the Beneficial Ownership Issue (albeit that the Judge found her beneficial ownership to be 14.25% rather than 15.25%, owing to what might be described as a clerical mistake in the calculation of the mortgage payments contributed by the Defendant).

6.On costs, and for reasons set out at §§143-144 of the Trial Judgment, the Judge made a costs order nisi (the “Costs Order Nisi”) that the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the Estate. 

7.The Plaintiff on 13 June 2025 applied to vary the Costs Order Nisi.  He sought a costs order absolute that (i) the Defendant be personally liable to pay 80% of his costs, and (ii) not more than 20% of the Defendant’s costs be paid by the Plaintiff or the Estate.  By the Costs Order, and for reasons set out in the Costs Decision, the Judge refused to vary the Costs Order Nisi.  The Plaintiff’s subsequent application for leave to appeal was refused by the Judge on 6 October 2025 (the “Leave Decision”, [2025] HKCFI 4593) – hence the present Renewed Leave Summons.

C.     The Judge’s Reasons

8.In the Trial Judgement, the Judge expressed his tentative views on parties’ general and litigation conduct.  He said that “the Plaintiff should not have conjured up blatantly untrue allegations that support a false case” on the Beneficial Ownership Issue, and should not have “out of spite, raised false accusations that aimed at denigrating the Defendant’s character.”  The Judge found that those false accusations and false assertions had unnecessarily and considerably lengthened the proceedings, and took the view that the costs order should reflect the court’s disapproval of the Plaintiff’s conduct.  On the other hand, he said that the Defendant’s decision to contest the Probate Issue was understandable, that “the Plaintiff stonewalled the Defendant from the affairs of the Deceased”, that the Defendant “was not even informed of the Deceased’s death and had no opportunity to attend her funeral”, that “there were genuine doubts and concerns on the part of the Defendant regarding the state of affairs”, and that “the Deceased and the Plaintiff were responsible for creating these doubts and uncertainty, which needed to be investigated and resolved by the court”.  He found that the Defendant had conducted the proceedings in a reasonable and proportionate manner.  In the circumstances, he made the Costs Order Nisi which he regarded as fair.

9.In the Costs Decision:

(a)     The Judge expressed his view that 65% of the costs in the proceedings were attributed to the Probate Issue, and 35% to the Beneficial Ownership Issue (§10);

(b)     The Judge gave full and detailed reasons as to why, on the basis of “(i) the relative success achieved by the parties; (ii) the circumstances in relation to the present litigation; (iii) the conduct of the parties; and (iv) the aforesaid apportionment” (§11), and having considered those matters in the round, he remained of the view that the Costs Order Nisi was a fair one;

(c)     In particular:

(i)     In relation to the Beneficial Ownership Issue, the Judge stated that he was most unimpressed by the Plaintiff’s litigation conduct.  With reference to §§69 to 71 of the Trial Judgment, he stated his finding that the Plaintiff “knowingly ran a false case” (§13).  He expressed his view (§14) that the costs order “must reflect the court’s disapproval of the Plaintiff’s dishonest and undesirable litigation conduct”;

(ii)     In relation to the Probate Issue:

(1)     The Judge summarised the law (§8), that:

… the court may, depending on the circumstances, depart from the general rule that costs should follow the event if (i) the litigation is caused by the conduct of the testator or the conduct of the residual beneficiary; or (ii) there are circumstances giving rise to a reasonable need to investigate the validity of the will …

(2)     The Judge then set out the Plaintiff’s submissions (§9), that:

Nonetheless, [the Plaintiff] submitted that none of these exceptions applied.  In gist, they contended that:-

(1)   The Defendant had strong reason to suspect that the Deceased had executed a new will subsequent to the 2017 Will, and she should not have taken steps to obtain probate based on the 2017 Will.

(2)   The Defendant failed to carry out reasonable enquiry regarding the existence and validity of the 2019 Will.

…

(3)     The Judge acknowledged that the Plaintiff was the successful party.  But whilst that was so, the Judge then gave detailed and mostly factual reasons (§§16(1) to (10)) explaining why he rejected the Plaintiff’s suggestions that the Defendant (i) should have known that the 2017 Will was not the Deceased’s last will, and (ii) should have succumbed to the Plaintiff’s claim based on the 2019 Will at an early stage.  He found specifically (§16(8) to 16(10)) that:

(8)     … the Defendant had solid reasons to doubt whether the Deceased was sober and had testamentary capacity at the time when the 2019 Will was made. In light of the matters set out above, I am of the view that the Defendant’s doubt and suspicion were reasonable and understandable.

(9)     In light of my findings (see Judgment, paras 111 to 132), the doubt and suspicion surrounding the events on 8 August 2019 have been dispelled now … Without the trial, the Defendant, who had been kept in the dark all along, could not have assessed whether Dr Hung, Madame Chung and Ms Ho were honest or not; nor could the Defendant and her advisors have formed a view as to whether Dr Hung’s opinion, diagnosis and analysis were sound.

(10)   Lastly, I do not lose sight of the fact that the Plaintiff completely stonewalled the Defendant from the Deceased’s affairs before she passed away.  He concealed the whereabouts of the Deceased from the Defendant. He did not even inform the Defendant about the Deceased’s death, such that the Defendant had no opportunity to attend her funeral. In my view, the Plaintiff’s conduct was not reasonable, and his conduct only strengthened the Defendant’s suspicion. 

(iii)     The Judge further stated his view (§17) that:

… (i) it can be said that the present litigation was caused by the conduct of the Deceased and the Plaintiff; and (ii) there was a reasonable need to investigate the validity of the 2019 Will.  As such, there are good reasons to depart from the usual rule that costs should follow the event: see Nina Kung (supra) at paras 10-19; Chiu Man Fu (supra) at para 4.

(iv)     The Judge was aware of the fact that since the Plaintiff had been found to be the sole beneficiary of the Estate, the Costs Order effectively meant that the Plaintiff would have to bear his own costs and 65% of the Defendant’s costs.  The Judge found that to be justified on the parties’ general and litigation conduct which he had detailed (§22).

10.When seeking leave to appeal from the Judge, the Plaintiff put forward, as summarised by the Judge, three reasons: (1) that the Judge failed to take into account the Plaintiff’s argument that given the Defendant’s failure to make proper enquiries on the existence of the 2019 Will, she should bear personal liability for necessitating those proceedings unnecessarily, (2) that the Judge erred in taking into account the fact that the Plaintiff completely stonewalled the Defendant from the Deceased’s affairs before her death, and (3) that the Judge erred in the costs attribution percentage, and erred in the exercise of his discretion.  The Judge found that none of those grounds was arguable, and the Plaintiff’s intended appeal had no reasonable prospect of success.

D.     The Present Application

11.In the draft Notice of Appeal attached to the Renewed Leave Summons, the Plaintiff asks the Costs Order to be set aside, and to be substituted by an order that 65% of the Plaintiff’s costs be personally paid by the Defendant, and that 35% of the Defendant’s costs be either paid by the Plaintiff or paid out of the Estate.  Simply put, the Plaintiff’s position is that the Judge should not have departed from the general rule of costs following the event, and that each party should have the costs of the issue they had won, using the apportionment figures found by the Judge.

12.The Plaintiff runs two grounds, both of which concern the Defendant’s alleged failure to make enquiries about the existence of any latter will before applying for probate:

(1)     The Judge failed to take into account the Defendant’s pre-action conduct when exercising his discretion in making the Costs Order.  The Plaintiff argues that the Defendant had a duty to make reasonable enquiries as to the existence of any latter will before she applied for probate based on the 2017 Will.  She did not make enquiries with the Plaintiff or conduct a will search through solicitors, even though she was legally represented in the probate application.  The Plaintiff contends that the Defendant had actual knowledge or at least had reasonable suspicion of the existence of the 2019 Will before she applied for probate.  The Plaintiff said “the circumstances could not have supported a true and bona fide belief” that the 2017 Will was the Deceased’s true last will, contrary to what the Defendant positively affirmed when she applied for probate.  See §§2-4 of the Plaintiff’s Written Statement.  This is referred to by parties as the “Enquiry Argument”. (“Ground 1”)

(2)     The Judge, in dismissing the Enquiry Argument, took into account irrelevant considerations, namely, the Plaintiff’s conduct after the death of the Deceased.  The Plaintiff argues that the Judge’s finding that the Plaintiff had stonewalled the Defendant both before and after the Deceased’s death would not absolve the Defendant of her duty to exercise due diligence before applying for probate. The Defendant was legally represented when she applied for probate and therefore the fact that the Plaintiff had personally stonewalled the Defendant would not have prevented her solicitors from making enquiries or doing a will search. (“Ground 2”)

E.     Discussion

13.This Court has repeatedly emphasised that a costs order is quintessentially an exercise of discretion by a judge.  An applicant for leave to appeal against such an order faces a very high hurdle.  The Court of Appeal will not interfere with a judge’s decision on costs unless it is wrong in principle or the exercise of discretion by the judge is plainly wrong: see KK, H v PK, H [2023] HKCA 176, at §24. Further, unless it can be shown that a judge has committed a palpable error in the exercise of the discretion on costs, the mere fact that the Court of Appeal would not have exercised the discretion in the same manner as the judge did is not a sufficient ground to warrant interference with the decision of the judge: see Industrial and Commercial Bank of China (Asia) Limited v Tse Ching [2022] 5 HKLRD 284, at §27.

14.We have set out above §17 of the Costs Decision.  The Judge’s views stated therein (that the present litigation was caused by the conduct of the Deceased and the Plaintiff, and that there was a reasonable need to investigate the validity of the 2019 Will) are supported by the factual findings which he had made.  He was entitled to make those findings.  With those findings, it was open for him to depart from the general rule of costs following the event.  There is no basis for this Court to interfere.

15.Specifically in relation to Ground 1:

(a)     Ground 1 is misconceived and is bound to fail;

(b)     The Judge in the Leave Decision described Ground 1 as “puzzling”.  We understand his sentiments, as he clearly had considered the Enquiry Argument – see for example §9 of the Costs Decision where he specifically set out that argument, and §16 where he gave detailed reasons for rejecting the Plaintiff’s related suggestions.  We highlight also what the Judge stated at §17 of the Costs Decision;

(c)     As the Judge stated at §§13 and 14 of the Leave Decision, which views he was entitled to take:

13.     Put simply, whilst I did not lose sight of the Defendant’s pre-action conduct, I was of the view that she acted reasonably all along.  She had sound reasons to believe that the 2017 Will was valid and that the 2019 Will might not be valid.  I was unable to discern any unreasonable conduct and/or breach of duties on her part.

14.     In this connection, it is futile for the Plaintiff to keep harping that the Defendant should have carried out more investigation before applying for probate based on the 2017 Will.  This suggestion was utterly unreal.  The Defendant could not have cross-examined Dr Hung, Madame Chung and Ms Ho and tested their evidence before the trial in these proceedings took place.

(d)     We further agree with the Judge that it would be unfair for the Plaintiff to criticise the Defendant with regard to a matter that was not properly explored at trial (§17 of Leave Decision).  At trial, the sole basis relied upon by the Plaintiff to revoke the probate already granted to the Defendant was that the 2019 Will is the last true will of the Deceased.  As shown in the Trial Judgement, central to the Probate Issue was whether the Deceased had testamentary capacity, and/or knew and understood the contents of the 2019 Will when she executed the same. The Plaintiff did not challenge the probate on the basis that the Defendant had failed to make proper enquiries on the existence of a latter will, so that the matter was not fully explored at trial.

16.Ground 2 could be quickly disposed of:

(a)     There can be no dispute that the Judge was entitled to make the relevant factual finding (that the Plaintiff stonewalled the Defendant both before and after the Deceased’s passing), and was entitled, in considering how his discretion was to be exercised, to go on to take that into account as part of the Plaintiff’s conduct.  It is plainly a relevant consideration for costs purposes;

(b)     The Plaintiff’s complaint is that “[s]uch finding does not absolve D of her duty to exercise due diligence before applying for a Grant of Probate on an ex parte basis”.  That was however not the Judge’s view.  What the Judge said was that the Plaintiff’s conduct in stonewalling the Defendant strengthened the Defendant’s suspicions of the validity of the 2019 Will.  See §16(10) of the Costs Decision and §22 of the Leave Decision;

(c)     Ground 2 has no reasonable prospect of success.

F.     Disposition

17.The application for leave to appeal is refused. The Renewed Leave Summons is dismissed with costs to the Defendant, to be summarily assessed.  By a Statement of Costs for Summary Assessment dated 3 November 2025, the Defendant seeks costs in the total sum of HK$112,754.  Given the engagement of counsel, we find the total hours of 6.25 hours charged under Item C (Communications) and Item D (Professional Work) unreasonable and excessive.  We allow only 4 hours in the total sum of HK$20,800.  Given the fact that counsel Mr Siu had always been involved in the matter and was familiar with the same, the charged costs of HK$80,000 are in our view unreasonable and excessive.  We allow only HK$50,000.  We summarily assess the costs at the round figure of HK$71,000. The above costs order, including the assessment of costs, are made on a nisi basis, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

18.Lastly, as the leave application is in our view wholly without merit, we further order, pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap. 4A), that no party may request the present determination to be re-considered at an oral hearing inter partes.

Ms Queenie WS Ng and Ms Michelle LY Wong, instructed by Cheung & Co., Solicitors, for the Plaintiff

Mr Stephen Siu, instructed by Jisp Cheung & Co., Solicitors, for the Defendant