The Joint and Several Trustee of the Property of So Ching Wan v. Assen Ltd (in Liquidation) and Others
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CACV 306/2019 [2026] HKCA 1555 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 306 OF 2019 (ON APPEAL FROM HCB NO 4475 OF 2002) ________________________
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________________________ DECISION ________________________ Introduction and Brief Background 1.By a Notice of Appeal to Judge in Chambers dated 20 January 2026 (“NOA”), the Joint and Several Trustee of the Property of So Ching Wan (“the Applicant”), seeks to appeal against the Order of Master Maurice Lam (“the Master”) dated 9 January 2026 dismissing the Applicant’s Summons dated 10 October 2025 (“the Summons”) to set aside the Order for examination of one of the Applicant, Tang Chun Wah (“Tang”), pursuant to O.49B of the Rules of High Court, Cap.4A (“RHC”) made by Master D To on 9 April 2025. The ex parte application for the O.49B order was made by way of the 3rd Affirmation of Lau Siu Hung (“Lau”) filed on 1 April 2025 (“Lau 3rd”). 2.The following affirmations were filed in relation to the Summons and were before the Master:
3.At the hearing of the NOA, Mr Tang appeared in person, unrepresented, for the Applicant and Mr Ng, counsel, appeared on behalf of the Joint and Several Liquidators of the 1st Respondent (“the Liquidators”). Applicable Principles 4.It is trite that an appeal from a master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him or her for the first time: see Hong Kong Civil Procedure 2026, Vol.1, §58/1/2. 5.As for adducing further evidence on an appeal from a master to a judge, it has to be shown that there are “special grounds” for receiving such evidence: see O.58, r.1(5) of RHC. “Special grounds” require the conditions laid down by Ladd v Marshall to be satisfied: see Hong Kong Civil Procedure 2026, Vol.1, §58/1/3. Under those conditions, further evidence is admissible only when such evidence: (1) could not have been obtained with reasonable diligence for use at the hearing below; (2) if given, it would have an important influence on the result of the case, though it need not be decisive; and (3) must be such as is presumably to be believed. 6.As for examination orders, O.49B, r.1 of RHC provides:
7.An order under O.49B is a recognized step that a party, who has obtained an order or judgment for payment of a sum of money, may take for the purposes of executing and enforcing the order or judgment to find out whether the debtor has any means of satisfying the liability under the order or judgment: see Poon Ting Chau v Wong Kwok Chi & Anor (unrep) HCMP 5314/2002 & HCA 2903/2004, 20 October 2006, per Chu J (as she then was) at §§34 and 47 and Hong Kong Civil Procedure 2026, Vol.1, §49B/1A/2. 8.It is also trite that a party applying for an ex parte order is under a duty to make full and frank disclosure and that an ex parte order is liable to be set aside or discharged if it is established that there was material non-disclosure by the applying party when making the application. It is also clear law that the duty to make full and frank disclosure relates only to material facts, which are facts relevant to the weighing operations which the court has to make in deciding whether or not to grant the application: see Poon Ting Chau, §32. See also Tsui Yun Bun Barry v Law Wan Tung (formerly known as Law Siu Yi Biby) [2019] HKCFI 2955 at §45 per Recorder Stewart Wong SC. Discussion and Disposition 9.The Applicant seeks to rely on Tang 7th, Tang 8th as well as the 9th Affirmation of Tang filed on 21 January 2026 (“Tang 9th”). However, reliance on Tang 9th was objected to by Mr Ng on the grounds that there is no proper application for leave to adduce Tang 9th and in any event, the evidence could not have any important influence on the result of this case. I agree. As this is a hearing de novo, in so far as Tang 9th sets out various grounds of appeal in demonstrating how the Master had erred, it is not determinative of this appeal: see Poon Ting Chau, §27. Besides, as I had explained to Mr Tang, it is wholly inappropriate for affirmations to contain submissions which were in turn cited at length in the Submissions of the Applicant dated 28 May 2026 (“the Applicant’s Submissions”). 10.I turn to the alleged material non-disclosure by the Liquidators. Mr Tang confirmed that the matters relied upon are summarised in the Applicant’s Submissions at §35. 11.Firstly, it was submitted that there was material non-disclosure of the fact that 6 of the 7 costs orders were not made against Mr Tang personally[1]. In Lau 3rd, it was stated that the Applicant was ordered to pay the sum of HK$650,857 (which remains unsatisfied) pursuant to the following orders:
12.In respect of (6) above, this relates to two costs orders made by the Court of Appeal dated 29 December 2020 and 5 May 2021, which were taxed by Master Lai leading to the Allocatur. By the Court of Appeal’s Order dated 29 December 2020 (“CA’s Costs Order”), the Applicant was ordered to pay the costs of the appeal to the Liquidators on an indemnity basis and that Tang is to pay the costs personally and not from the estate of the Bankrupt. By Order dated 5 May 2021 (“CA Variation Costs Order”), the Court of Appeal did not allow the Applicant’s application to vary the CA’s Costs Order and ordered the costs of and occasioned by that application be to the Respondents to be taxed together with the costs of the appeal if not agreed. 13.Even on the Applicant’s case[2], the CA Costs Order was made by the Court of Appeal against Mr Tang personally and therefore there can be no serious dispute that he has been ordered to pay a specified sum of money which is unsatisfied. 14.Besides, in the ex parte application, it was only stated that the various costs orders and the Allocatur were ordered against the Applicant, being the Joint and Several Trustees of the Property of So Ching Wan. I cannot see how there was any material non-disclosure. 15.Furthermore, as a matter of law, a trustee in bankruptcy is treated as a party to any legal proceedings which he commences or adopts and is personally liable for any costs which may be awarded to the other side: see Gabriel v BPE Solicitors and another (SC(E)) [2015] AC 1663 at §§4, 9-10. Therefore, any submissions that Mr Tang is not liable in his personal capacity in the absence of any express order is wrong[3]. Accordingly, I cannot see how there was any material non-disclosure by failing to point to the lack of any express order made against Mr Tang personally in respect of the costs orders apart from the CA Costs Order. 16.Secondly, it was submitted that there was confusion and uncertainty as at April 2025 whether the Liquidators or the 1st Respondent would be receiving the sums taxed by Master Lai and there would be “enforcement difficulty” without knowing how much is payable and to whom[4]. It was submitted that the Allocatur “lumped together” the Court of Appeal’s two costs orders. However, there can be no real confusion and uncertainty as:
17.In any event, I cannot see how the fact that the Allocatur did not split what sums were payable under the CA Costs Order and the CA Variation Costs Order is material when plainly, as a matter of law, Mr Tang is liable personally under both costs orders for the reasons explained above. 18.Thirdly, it was submitted that the Allocatur had not distinguished the taxed amounts payable under the CA Costs Order and the CA Variation Costs Order[5]. However, the Court of Appeal had ordered both sets of costs to be taxed together so this is not a valid complaint. In any event, as already mentioned, what items related to the CA Costs Order and what items related to the CA Variation Costs Order have been clearly set out and made known to Mr Tang. 19.Fourthly, it was submitted that Lau 3rd only referred to the CA Costs Order saying that Mr Tang was personally liable to pay those costs without referring to the CA Variation Costs Order[6]. However, the CA Variation Costs Order formed part of the Allocatur and the Allocatur was expressly mentioned in Lau 3rd. The Allocatur itself refers to both the CA Costs Order and CA Variation Costs Order. I do not accept there was any material non-disclosure and/or deliberate concealment. 20.Fifthly, it was submitted that none of the underlying costs orders were exhibited to Lau 3rd and therefore they were purposively concealed from the court to hide the fact that 6 of them did not order Mr Tang to pay costs personally[7]. However, the relevant court orders were mentioned in the body of Lau 3rd and they were all in the court files. To exhibit the costs order would be in breach of Practice Directions 10.1, which provides that court documents and orders should never be exhibited (see §4(c)). Again, I do not accept there was any material non-disclosure and/or deliberate concealment. 21.Sixthly, it was submitted that there was material non-disclosure of the fact that as informed by the Applicant’s then solicitors there was then ongoing appeal and express requests for Lau to stop any enforcement procedures. Given that it is trite that an appeal shall not operate as a stay of execution (see O.59, r.13 of RHC), the failure to disclose such matters was not material. 22.Seventhly, by a comparison between what Mr Tang described as a “flimsy” 3 pages of text of Lau 3rd and Lau 4th, it was submitted there was material non-disclosure of the events, explanations and exhibits now contained in Lau 4th[8]. However, plainly whether there has been material non-disclosure is not to be decided on the number of pages of an affirmation filed in support of the ex parte application and it is for the Applicant to demonstrate that there was material non-disclosure which it has not done so. The fact that Lau 4th is more lengthy and detailed is explicable as it responded to the various alleged material non-disclosure for the purposes of the setting aside application. 23.For the avoidance of doubt, I have anxiously considered all the other submissions in the Applicant’s Submissions and those made orally by Mr Tang but I disagree, whether individually or cumulatively, that they amount to substantial or material non-disclosure in the ex parte application. In particular, I do not consider that there was any intentional non-disclosure or “serious litigation misconduct” at the time of making the ex parte application[9]. Having regard to all relevant circumstances, even if there was any material non-disclosure, I do not think it proportionate to deny the 1st Respondent an order for examination under O.49B. Thus, I would have re-granted the order even if there was any material non-disclosure. 24.It follows that the NOA should be dismissed. 25.In the Applicant’s Submissions[10], the Applicant also sought to vary the standard directions given by Master J Wong on 26 January 2026. As the NOA did not include any appeal against the directions made by Master J Wong, there is no basis for me to consider such application and I no see reason to do so. 26.There is no reason why costs should not follow the event. 27.Having considered the parties’ oral submissions on costs, although this appeal is wholly unmeritorious and despite Mr Ng’s submissions that the concerns of Mr Tang as to whom to pay and how much were not genuine but an attempt to delay his examination and reference was made to the open letter dated 29 January 2026, I accept that it was not wholly unreasonable for Mr Tang to challenge what no doubt is a serious and draconian order made against him. Considering all the circumstances of this case, I do not consider that there are special or unusual features in this case that justify costs against Mr Tang on an indemnity basis. 28.I will therefore order that Mr Tang should pay the Liquidator’s costs of and occasioned by the NOA, on a party to party basis, to be summarily assessed on paper. The Liquidators should lodge and serve a Statement of Costs (limited to 3 pages) within 7 days from the handing down of this decision and Tang should lodge and serve a List of Objection (limited to 2 pages) within 7 days thereafter.
The Applicant, represented by Mr Alan CW Tang, appeared in person Mr Kurt Ng, instructed by Johnnie Yam, Jacky Lee & Co, for the 1st Respondent [1] See the Applicant’s Submissions, §35(a). [2] See the Applicant’s Submissions, §16. [3] Cf the Applicant’s Submissions, §§14-15 and 17-18. [4] See Applicant’s Submissions, §§13 and 35(b) & (d). [5] See Applicant’s Submissions, §§19 and 35(c) & (d). [6] See Applicant’s Submissions, §35(e). [7] See Applicant’s Submissions, §35(f). [8] See Applicant’s Submissions, §§23-25 and 35(g). [9] Cf Applicant’s Submissions, §§39-43. [10] See §§46-48. |
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