Lam Hei Kiu v. Lam Kit Fung

HCMP 2265/2025

[2026] HKCFI 3816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2265 OF 2025

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RULING ON COSTS

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1.The Plaintiff’s originating summons dated 21 November 2025 (the “OS”) was for pre-action discovery of the monthly bank statements of a joint bank account held at BOC in the names of Madam Lam Mei Chun (the “Deceased”) and the Defendant, the Deceased’s daughter (the “Joint Account”). After the Defendant filed her affirmation on 2 February 2026 in opposition, the Plaintiff deemed the pre-action discovery no longer necessary.

2.By an order by consent dated 15 April 2026, the substantive hearing of the OS was adjourned sine die, and the parties were directed to file written submissions on costs which they have done.

Factual background

3.The Deceased died intestate on 25 February 2023. She left surviving her

•  Lam Chu Leung, the Deceased’s son;

•  the Plaintiff, a grandson, whose father Lam Chu Kwong predeceased the Deceased;

•  the Defendant, the Deceased’s daughter; and

•  a granddaughter (aged about 12) whose father Lam Chu Ming also predeceased the Deceased.

4.No grant of letters of administration has been issued in respect of the Deceased’s estate (“Estate”) which remains unadministered. The Plaintiff is a beneficiary entitled to the share that would have gone to his late father Chu Kwong had he not predeceased the Deceased.

5.Prior to his death on 25 January 2021, Chu Kwong held, inter alia, a joint account with the Deceased at BOC (the “Original Joint Account”). A week after Chu Kwong’s death, the Deceased told his widow (“Madam Chan”) that she had transferred the funds from the Original Joint Account to her personal sole name account at BOC. The Deceased kept it there until 15 October 2022 when it was transferred into the Joint Account.

6.It is the Plaintiff’s understanding that the Deceased held the Original Joint Account with Chu Kwong as well as the Joint Account with the Defendant for the purpose of administrative convenience. On that basis, the Plaintiff considers that the balance in the Joint Account (the “Balance”) at the date of the Deceased’s death belongs to the estate. It is the Plaintiff’s belief that the Defendant had misappropriated a part or all of the Balance out of the Joint Account.

Applicable legal principles

7.The conditions for exercising the court’s power to order pre-action discovery are set out by Zervos J (as he then was) in VTB Debt Centre LLC v Top Fuel Corporation Ltd unrep., HCMP 1543/2013, 16 April 2014 at §44. In Zhang Shouen & Anor v Standard Chartered Bank (Hong Kong) Ltd unrep., HCMP 682/2015, 15 October 2015, G Lam J (as he then was) adopted those conditions but split the 3^rd condition into two, and set out (at §21) the conditions as follows:

“(1) The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made. In order to satisfy the requirement that a claim is likely to be made, the applicant must show a claim ‘may’ or ‘may well’ be made if discovery is granted.

(2) The respondent appears likely to be a party to such proceedings.

(3) The respondent appears likely to have or to have had in his possession, custody or power the document requested.

(4) The requested document is ‘directly relevant’ to an issue arising or likely to arise out of that claim. ‘Direct relevance’ is shown only if:

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b) the document supports or adversely affects any party’s case.

(5) The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.”

8.The first four requirements stated above are jurisdictional conditions. Unless they are satisfied, the jurisdiction to order pre-action discovery does not arise: Zhang Shouen at §22.

Whether the jurisdictional requirements are satisfied

9.The Plaintiff is a beneficiary in the Deceased’s estate. However, as earlier noted, no grant has been issued and there is no administrator.

10.Mr Mark Leung, counsel for the Plaintiff, relies on Re Estate of Luk Kim Ying [2008] 5 HKLRD 743 (at §§20-26) for the proposition that a plaintiff has locus to sue in his personal capacity as a purported beneficiary of an unadministered estate.

11.But in that case, the court went on to explain (at §28) that having locus is not the end of the matter as in such an action it is necessary to join the personal representative of the estate or a suitable party to represent the estate. In the absence of joinder, the action is irregular, though not a nullity and is liable to be struck out.

12.Ms Vivian Chan, counsel for the Defendant, submits that even if the Plaintiff were to apply for a representation order in future proceedings, there is no evidence to show how he intends to overcome two further hurdles:

(i)  The Plaintiff is 19 years of age which is under the age of 21 required to be an administrator.

(ii)  There is one beneficiary[1] who is a minor in which case either a trust corporation or at least two individuals as co-administrators would be required[2].

13.In the circumstances, I agree that on this ground alone, the Court’s jurisdiction to order pre-action discovery would not even arise and the Plaintiff’s action would have been dismissed.

Whether pre-action discovery unnecessary

14.For completeness, the Defendant also submitted that pre-action discovery was unnecessary which is the fifth requirement.

15.The issue that arises centres on the Deceased’s intentions regarding the funds in the Joint Account. The Plaintiff’s case is that the Deceased intended the monies in the Joint Account to form part of her estate on her death to be equally distributed to her children whereas the Defendant’s case is that such monies were intended as a gift to the Defendant. As such, the bank statements have no direct relevance to the determination of the issue.

16.On 26 March 2023, the Deceased’s son (Chu Leung) brought with him to the funeral ceremony a BOC letter he had collected from the Deceased’s address and opened it in the presence of Madam Chan and the Defendant. It was the monthly bank statement of the Joint Account for February 2023.

17.Madam Chan’s evidence[3] is that she spotted the opening balance shown on that statement to be about $960,000 and the closing balance $0. In response to Madam Chan’s question to the Defendant as to whether the monies had been transferred out by her, Madam Chan received an affirmative reply. In his affirmation, the Plaintiff confirmed this understanding: at §§7, 9-10.

18.Therefore, by March 2023 and well before the OS, the Plaintiff had all the necessary information concerning the Joint Account and could have commenced the action.

19.It is salutary to bear in mind that pre-action discovery is not an investigative tool for assisting a claimant (i) to develop and finesse his cause of action, (ii) to obtain evidence to boost his case, (iii) to refine a pleading, or (iv) to avoid the need to amend pleadings later. Otherwise, it renders general discovery otiose: see 上海諾港科學集團有限公司v World Laureates Management Limited [2024] HKCFI 1540 at §51.

20.Applying those principles, there is no doubt that the Plaintiff’s application would not have been allowed.

Disposition

21.So far as costs of a pre-action discovery application are concerned, section 43(2) of the High Court Ordinance is applicable:

“… the costs of and incidental to proceedings for an order under sections 41 and 42[4] incurred by the person against whom the order is sought shall be awarded to that person unless the Court of First Instance otherwise directs[5].”

22.In Delco Participation BV v Stephenson Harwood (A Firm) [2019] HKCFI 410, DHCJ Sir Richard Field held (at §12) that where documents are ordered to be disclosed under section 43(2), the party making disclosure is entitled to its costs. The entitlement assumes that the party ordered to make disclosure is entitled to resist disclosure and have the applicant satisfy the court that it is an appropriate case for pre-action disclosure.

23.On that basis, the starting point is that the Defendant is entitled to the costs of the OS even in the case where the applicant is successful which is not the present case. For the Court to depart from the general rule, exceptional circumstances must exist and none has been identified by the Plaintiff.

24.It is beyond dispute that for the reasons set out above, the Plaintiff’s application was bound to fail. The Plaintiff has failed to satisfy the first of the four jurisdictional requirements with the consequence that the Court’s jurisdiction to order pre-action discovery does not even arise. Further, it is incumbent on the Plaintiff to show that pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.

25.On the evidence before the Court, the Plaintiff had all the information required to bring any potential claim against the Defendant. There is no merit whatsoever in the Plaintiff’s allegation[6] that the Plaintiff did not know where the Balance had gone or that all the funds had been transferred out at the time of the OS until the Defendant’s affirmation filed on 2 February 2026.

26.In my view, the OS should never have been brought. It was entirely unnecessary for the Plaintiff to have discovery of the bank statements before commencement of the action.

27.In the present case, there is no reason why the usual rule that costs follow the event should not apply.

28.Surprisingly, the agreed hearing bundle lodged by the Plaintiff for this application includes the Defendant’s letter making the Sanctioned Offer to the Plaintiff pursuant to RHC Order 22 (in relation to costs only) on 11 March 2026. I take this to mean that it is the parties’ intention that the Court be apprised of the Sanctioned Offer which is addressed in the Defendant’s skeleton which is highly unusual.

29.The Plaintiff did not accept the Sanctioned Offer by 8 April 2026, the deadline for acceptance.

30.In the circumstances, I order nisi as follows:

(1)  The costs of and occasioned by the OS be paid by the Plaintiff to the Defendant, with certificate for counsel, to be taxed if not agreed;

(2)  The Plaintiff do pay the Defendant’s costs incurred after 8 April 2026 on an indemnity basis;

(3)  Interest on costs incurred by the Defendant after 8 April 2026 be at a rate of 4% above judgment rate;

(4)  The Defendant do file her statement of costs within 14 days of this Order for summary assessment of costs;

(5)  The Plaintiff do lodge his list of objections (if any, limited to 2 pages) within 14 days thereafter; and

(6)  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Mark Leung, instructed by Messrs. K.B. Chau & Co., for the Plaintiff

Ms Vivian Chan, instructed by Messrs. C.Y. Tsang & Co., for the Defendant