Cheung Ting Kau, Vincent v. Koo Siu Ying and Another

HCAP 4/2011

[2026] HKCFI 3672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.By summons dated 2 May 2025 (“Variation Summons”), the defendants seek variation of the costs order nisi made by the court in its Judgment dated 11 April 2025 (“Judgment”)  for orders that:

(1)  Lam Kin Ngok Peter (“Peter Lam”)  be jointly and severally liable for the costs of the proceedings alongside the plaintiffs (Issue I).

(2)  The costs of the proceedings be taxed on an indemnity basis if not agreed (Issue II).

(3)  Any of the defendants’ costs of these proceedings not recovered from Peter Lam and/or the plaintiffs be paid out of Mr Lim’s estate (“Estate”)  on an indemnity basis with a certificate for two counsel (Issue III).

(4)  The plaintiffs shall not be entitled to recover any of their costs of the proceedings out of the Estate (Issue IV).

B.  ISSUE I – NON-PARTY COSTS

2.This application by the defendants is not opposed by the plaintiffs but opposed by Peter Lam.

3.The principles regarding non-party costs applications under section 52A(2)  of the High Court Ordinance, Cap 4 have been summarised by Linda Chan J in Summit Prestige Enterprises Ltd v Peak No 1 Holdings Ltd [2025] 1 HKLRD 151, inter alia, as follows:

(1)  The court would generally order costs against a non-party who did not merely fund the proceedings, but also substantially controlled or at any rate benefited from the proceedings.  Justice would ordinarily require that, if the proceedings fail, he would pay the successful party’s costs.

(2)  The ultimate question is whether in all the circumstances it is just to make the order for non-party costs. The suggestion that such costs orders are “exceptional” means nothing more than this.

(3)  The court distinguishes between a pure funder who funds litigation to facilitate access to justice by the funded litigant, and a self-interested funder who funds litigation to gain access to justice for his own purposes.  A pure funder is one who has no personal interest in the litigation, does not seek to benefit from it, does not fund it as a matter of business, and does not seek in any way to control its course.

4.Peter Lam submits that it is not in the interests of justice to make a costs order against him.  I do not agree.

5.First, there is no dispute that Peter Lam was the person funding these proceedings. Agnes Fung, one of the plaintiffs, testified that these proceedings were being funded by Peter Lam.  Peter Lam admits this in his Affirmation filed in opposition to the Variation Summons.

6.Second, it cannot be disputed that Peter Lam stood to benefit from these proceedings.  Importantly, he stood to receive a greater proportion of the Estate than under previous wills.  On the other hand, the third family (being the defendants and Eric Ling)  were to be disinherited completely.

7.Third, Peter Lam contends that no order should be made against him, such order is not necessary as he had already given an indemnity to the plaintiffs for their costs.  I agree that this is plainly not a reason to refuse an order for costs against Peter Lam.  Peter Lam has chosen not to disclose any documents evidencing the terms of the indemnity or any details about the scope, terms and duration of the indemnity. In any event, in the circumstances outlined above, the defendants are plainly entitled to the non-party costs order against Peter Lam as a matter of principle.

8.Accordingly, I hold that Peter Lam should be joined and made liable for the costs of the proceedings.

C.  ISSUE II – INDEMNITY COSTS ORDER (AGAINST BOTH THE PLAINTIFFS AND PETER LAM)

9.This application by the defendants is opposed by the plaintiffs.  Peter Lam makes no submission on this issue.

10.The relevant principles have been summarised by the plaintiffs as follows in paragraphs 5 to 9 of their Skeleton Submissions.

11.In the exercise of the court’s discretion, the usual order for costs made in favour of a successful party in litigation is that the party be awarded costs on a party and party basis.  The successful party should show that “the case has some special or unusual feature” to justify an award of costs on the indemnity basis.

12.The hurdle which must be surmounted by the party seeking indemnity costs is a “high” one - he must demonstrate “some conduct or some circumstance which takes the case out of the norm”.  Insofar as the application is based on the paying party’s conduct, it is necessary to show that such conduct was “unreasonable to a high degree”, not “merely wrong or misguided in hindsight”.

13.More specifically, advancing a case which is difficult, unlikely to succeed or which in fact fails, or without any foundation in law or fact, or devoid of merits, is not necessarily in itself a sufficient reason for an award of indemnity costs.  The court’s finding that the claim or the ground of defence is plainly and obviously incredible on the facts, or that the evidence has been deliberately untruthful will not necessarily in itself warrant an order for indemnity costs.  The conduct of the losing party must be of a “more venal kind” and the conduct of the litigation has in some sense been “wicked”.

14.Accordingly, it has been said that “the proceedings must be instituted or prosecuted in circumstances as to constitute an affront to the court.  Usually there must be something disgraceful in the conduct of the losing party or his legal representatives such as to cause the court to feel a proper sense of indignation.  Normal litigious hostility would not suffice”.

15.The defendants submit that this is a suitable case for the award of indemnity costs. In particular, this court has made seriously adverse findings against Peter Lam, Vincent Cheung (the original plaintiff), Agnes Fung (one of the substitute plaintiffs), and the main witnesses whose evidence the plaintiffs relied upon.  All of their evidence was found to be untruthful and unreliable.

16.Indeed, at paragraph 188 of the Judgment, this court made the following finding: “… seen against Dr Chan’s credible account of events, all of the plaintiffs’ main witnesses in relation to the occasion on 3 December 2004 [when the disputed Will was signed], including Peter Lam, Mark Lee, Vincent Cheung and Agnes Fung, cannot have been telling the truth.  They all must have known that Dr Kwok had conducted a mental examination and had said that Mr Lim had failed the examination, but none of them said a word about this.”

17.And at paragraph 188(2)  of the Judgment: “Further, they all presented a false picture of how and why the examination concluded.  Peter Lam, in his supplemental statement, said that Mr Lim was able to answer the questions without much issue, but that after a few questions he started becoming impatient, and Vincent Cheung asked the doctors to leave.  Mark Lee made similar statements in his 2^nd supplemental statement.  Agnes Fung gives evidence to similar effect, and says that there was ‘no big commotion’ when the doctors left.  This was contrary to Dr Chan’s evidence that the examination was completed with Dr Kwok repeatedly saying ‘cannot’ despite being pressured to change his view.  Yet none of the witnesses said a word about this.”

18.At paragraph 188(3)  of the Judgment, I came to the conclusion that: “I find the refusal of the plaintiffs’ witnesses to tell the truth about Mr Lim’s mental condition, and about what happened during and after the mental examination, a deliberate cover-up.”

19.In other words, this is not just a case of the court preferring the evidence of Dr Chan over the evidence of the plaintiffs’ witnesses.  Rather, this is a case of the plaintiffs’ witnesses deliberately putting up a cover-up of the true events.

20.I agree with the defendants’ submission that the circumstances of the present case take it “out of the norm”, and warrant an order of indemnity costs.

D.  ISSUE III – DEFENDANTS’ ENTITLEMENT TO COSTS OUT OF THE ESTATE

21.Both the plaintiffs and Peter Lam take no position on this part of the variation application.

E.  ISSUE IV – PLAINTIFFS’ RECOVERY OF COSTS OUT OF THE ESTATE

22.Peter Lam makes no submission on this issue.

23.On the other hand, the plaintiffs submit that this issue simply does not arise.  In paragraph 2.4 of the plaintiffs’ Skeleton Submissions, the plaintiffs state that the plaintiffs do not seek to recover their costs of the action from the Estate.  In light of the court’s pronouncement against the 2004 Will, there is simply no need for such an order.

24.The plaintiffs further submit that as the order sought is in the nature of a declaration, it should not be granted as such a declaration is not necessary.  I agree.  I think the defendants’ position in this regard is sufficiently protected by the court formally putting on record in this Decision the plaintiffs’ position as set out in paragraph 23 above.

F.  CONCLUSION

25.For all the reasons set out above, I make the following orders:

(1)  Leave be granted to join Peter Lam to these proceedings for the purposes of costs only.

(2)  The costs order nisi made by the court in the Judgment be varied as follows: “The costs of these proceedings (including all costs reserved, if any)  be personally borne by Lam Kin Ngok Peter and the Plaintiffs jointly and severally, such costs to be taxed on an indemnity basis if not agreed, with a certificate for two counsel.  Any of the Defendants’ costs of these proceedings, not so recovered from Lam Kin Ngok Peter and/or the Plaintiffs, be paid out of Mr Lim’s estate on an indemnity basis, with a certificate for two counsel”.

(3)  The costs of this application shall form part of the costs of these proceedings and be taxed accordingly if not agreed.

26.Lastly, I express my gratitude to counsel for their helpful assistance in this matter.

Mr Bernard Man, SC, leading Mr Jonathan Fung, instructed by Messrs MinterEllison LLP, for the plaintiffs

Mr Charles Hollander, SC, leading Mr Keith Chan, instructed by Messrs Holman Fenwick Willan, for the 1^st and 2^nd defendants

Mr Li Pak Hei, instructed by Messrs Woo Kwan Lee & Lo, for Mr Lam Kin Ngok Peter