Chan Ming Kit v. Luk Kwok Keung

DCPI 1964/2022

[2026] HKDC 895

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1964 OF 2022

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DECISION

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1.By way of my Decision on 20 February 2026 (see [2026] HKDC 249) (“the Decision”), I made absolute the costs order nisi I granted in paragraphs 77 to 80 of the Judgment dated 30 June 2025 (see [2025] HKDC 1047) (“the Judgment”).

2.The defendant issued a summons on 3 March 2026 to seek leave to appeal against the Decision. A draft notice of appeal containing 6 intended grounds of appeal (2 under the heading “Error in Law”; and 4 under the heading “Error in finding of fact”).

3.In the Decision, I made absolute the following costs order:-

3.1.  The defendant shall pay the plaintiff’s costs on (i) the issue of liability for the main action and; (ii) the counterclaim, to be taxed on indemnity basis if not agreed, with certificate for counsel, subject to the wasted costs order in paragraphs 3.3 and 3.4 below[1].

3.2.  The defendant shall pay the plaintiff’s costs on the issue of quantum in the main action at a scale commensurate to those awarded by the Small Claims Tribunal, subject to the wasted costs order in paragraphs 3.3 and 3.4 below, and summarily assessed at HK$5,000.00[2].

3.3.  The legal representatives do bear their own costs with respect to the preparation of the certificate of time estimate, and the application to set down[3].

3.4.  The costs of and occasioned by (i) the agreement of the trial bundle index, and; (ii) the preparation and service of the trial bundle be paid by the defendant’s solicitors personally, to be taxed on indemnity basis if not agreed, with certificate for counsel covering the costs of counsel’s submissions relevant to these matters[4].

4.One can see that the costs order granted under paragraphs 77 and 78 of the Judgment concerned the costs of the action; whereas paragraphs 79 and 80 were orders of wasted costs against the parties’ legal representatives personally.

5.Insofar as the orders of wasted costs are concerned, I agree with Ms Tina Mok, counsel for the plaintiff, that leave to appeal is not required for the defendant’s solicitors to appeal against them.

6.This court’s jurisdiction to make an order for wasted costs stems from section 53(3) of the District Court Ordinance (Cap 336) (“the DCO”):

“In any civil proceedings before it, the Court may, in accordance with the rules of court, by order disallow, or order the legal representatives concerned to meet, the whole or any part of any wasted costs.”

7.It is further provided in section 63(3) of the DCO that:

“A person against whom an order is made pursuant to section … 53(3) is entitled to appeal to the Court of Appeal without leave.”

8.Ms Mok also correctly submits that, even assuming leave is required to appeal against the orders for wasted costs, it is wrong for the leave application to be made by the defendant, instead of the defendant’s solicitors personally.

9.Based on the above reasons, it is my decision that this part of the defendant’s application should be dismissed forthwith. I shall thus refrain from commenting on the merits of any intended appeal against the orders for wasted costs, even though they have been detailed in the defendant’s written submissions and the draft notice of appeal.

10.What remains is the defendant’s application for leave to appeal against the costs orders concerning the action. Of the 6 intended grounds in the draft notice of appeal, only ground (a) and (b) remain to be relevant. In the defendant’s written submissions, only paragraph (a) to (c) remain relevant.

11.The costs orders are the products of the court’s exercise of its discretion. It is trite that the Court of Appeal will only intervene in a trial judge’s exercise of discretion on costs if such exercise erred in principle or was plainly wrong. In the absence of any palpable error, the mere fact that the Court of Appeal might have exercised the discretion in a different manner is not a sufficient ground to intervene with the trial judge’s decision: eg Chow Steel Industries Public Co Ltd & Ors v Ko Sung & Ors [2021] HKCA 1642 (Kwan VP & Cheung JA; 4 November 2021). Therefore, the defendant needs reasonable prospect of success in demonstrating that my exercise of discretion on costs was erred in principle, or was plainly wrong, in order to obtain leave to appeal.

12.Ground (a) in the draft notice of appeal complains that I failed to comply with Order 1A rule 2(2) of the Rules of the District Court (Cap 336H); it is claimed that I failed to secure the just resolution of dispute in accordance with the substantive rights of the parties. In particular, the defendant submits that, when I stated that the defendant’s logic was not understood in paragraph 44 of the Decision, I failed to properly consider facts in favour of the defendant.

13.Paragraph 44 of the Decision concerned the defendant’s argument seeking to vary the costs order nisi in the Judgment, by which he suggested that the costs order nisi should be varied because the defendant was in the process of appealing against the Judgment.

14.There is no substance in ground (a). In my decision, the variation of the costs order nisi must be considered on the basis that the Judgment has correctly adjudicated the dispute between the parties. The fact that the defendant has strong conviction about the merits of his case, and about his ultimate success on appeal, are irrelevant to whether the costs order nisi should be varied; and similarly whether I exercised my discretion on costs correctly. In my decision, the Decision was plainly correct when I found it difficult to follow the defendant’s logic in this argument.

15.Ground (b) in the draft notice of appeal claims that, in the absence of an order for split trial, I erred in adopting the issue-based approach in the costs order.

16.I agree with Ms Mok that, given this court’s discretion on costs is unfettered, there is no rule or principle of law that prevents me from making any costs order adopting the issue-based approach even when there is no order for split trial. Further, Order 62 rule 5(2)(c) of the Rules of the District Court requires this court to consider whether the plaintiff, who partly succeeded in his claim on quantum, exaggerated his claim when this court exercised its discretion on costs. Paragraph 62/5/7 of Hong Kong Civil Procedure 2026 also provides useful commentary about the appropriateness of adopting the issue-based approach on costs.

17.Ms Mok is also right to submit that the defendant’s reliance on paragraph 62/7/2 of Hong Kong Civil Procedure 2026 is misplaced. The commentary refers to the situation in which the same set of solicitors acted for multiple parties with the same interest in an action. In such a case, those parties can only claim one set of costs for the solicitors they jointly retained, in order to ensure that there is no double recovery of costs for the same work done. The commentary is plainly irrelevant to the defendant’s argument under ground (b).

18.I refuse to give leave on the basis of ground (b) of the draft notice of appeal.

19.In summary, the defendant fails to show that leave ought to be granted to appeal against the Decision.

20.I dismiss the defendant’s summons with costs to the plaintiff, together with a certificate for counsel.

21.The plaintiff has filed a statement of costs asking for summary assessment at HK$28,220.00. The defendant has not filed any objection as per the directions given on the disposal of the summons. I summarily assess the plaintiff’s costs at HK$28,000.00.

Ms Tina Mok, instructed by Joseph M K Chan, Solicitors, for the Plaintiff

Raymond Cheung & Chan, for the Defendant