Chau Tat Wing, Suing in His Own Capacity and As the Sole Executor of the Estate of Wong Tim Lun, Deceased v. Wong Kwai Wan and Another

CAMP 256/2025, [2026] HKCA 1891

On Appeal from [2025] HKDC 872 & [2025] HKDC 2087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 256 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 3244 OF 2022)

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J U D G M E N T

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Hon Coleman JA (giving the Judgment of the Court):

A.  Introduction

1.In a judgment dated 4 February 2026 in CAMP 130/2025, [2026] HKCA 63 (“CA Judgment”), the Court of Appeal (G Lam and Chow JJA) dismissed the Plaintiff’s renewed application for leave to appeal against the judgment of HHJ Harold Leung (“Judge”) dated 12 December 2024 in DCCJ 3244/2022, [2024] HKDC 2067 (“Main Judgment”) as amended or varied on 31 March 2025, [2025] HKDC 517 (“Further Decision”).  The Plaintiff’s intended appeal mainly related to the Judge’s determination of the disputes between the Plaintiff and the 1^st Defendant.

2.Before this Court now is the Plaintiff’s renewed application for leave to appeal against the Judge’s decision dated 6 June 2025, [2025] HKDC 872 (“Costs Decision”) refusing to vary the costs order nisi made by the Judge at §98 of the Main Judgment, by which the Plaintiff was ordered to pay the 2^nd Defendant’s costs of the Action to be taxed if not agreed, with certificate for one counsel (“Costs Order”).

3.Having considered the papers, we consider that it is appropriate to deal with the present application on the basis of written submissions only without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court Cap 4A (“RHC”).

B.  Brief background

4.The basic facts have been set out in the Main Judgment, and summarised in the CA Judgment.  We do not propose to repeat them here, save to mention the following:

(1)  The main dispute was between the Plaintiff and the 1^st Defendant, concerning the boundary of their lands adjacent to each other in DD 129 in Yuen Long, New Territories.  Central to their dispute was the issue of what the correct boundary line is between the southern portion of the 1^st Defendant’s Land and northern portion of the Plaintiff’s Land.  The contest was on whether the boundary was correctly shown on the 2012 Survey Plan prepared by an authorised land surveyor or the 2006 Survey Plan, an earlier survey plan also prepared by the same surveyor.

(2)  The 2^nd Defendant was joined to the Action by the Plaintiff because the Director of Lands accepted the 2012 Survey Plan deposited by the 1^st Defendant on 10 September 2012, and the Survey and Mapping Office subsequently updated the relevant lot index plan on 19 October 2012 showing the boundary line between the Plaintiff’s Land and the 1^st Defendant’s Land was as per the 2012 Survey Plan.  The Plaintiff claimed against the 2^nd Defendant in negligence and sought declaratory relief in respect of what he contended to be the true boundary line between his Land and the 1^st Defendant’s Land, as well as orders for the removal of the 2012 Survey Plan and the 2016 Lot Index Plan from the file(s) of the Lands Department.

(3)  The 2^nd Defendant denied the Plaintiff’s claim by contending, amongst other matters, that there was no duty owed by the Director to the Plaintiff, and the 2^nd Defendant or the Director was protected by section 33 of the Land Survey Ordinance, Cap 473 (“Ordinance”) from any liability arising from the deposit with the Director of plans and records resulting from any land boundary survey by a party, from the inaccurate information in the deposited plans and records or their inconsistency with the result of the relevant land boundary survey or the land boundary record, or from the Government’s or Director’s supply of any plan or record or information under the Ordinance.

(4)  The 2^nd Defendant counterclaimed for a declaration as to the correct boundary line of part of Lot 2451 in DD 129, which was a piece of land owned by the Government (“Government Land”) and abutting the southern boundary of the 1^st Defendant’s Land and western boundary of the Plaintiff’s Land.  The area counterclaimed by the 2^nd Defendant takes up approximately 2.2 m² in size (“Counterclaimed Area”).

5.On 12 December 2024, the Judge handed down the Main Judgment after trial.  Insofar as the disputes between the Plaintiff and the 2^nd Defendant were concerned, the Judge dismissed both the Plaintiff’s claim against the 2^nd Defendant and the 2^nd Defendant’s counterclaim, and made the Costs Order (originally nisi), for the following reasons:

(1)  The Judge considered that the Plaintiff was bringing a claim of negligence against the 2^nd Defendant, but failed to show that the 2^nd Defendant owed to the Plaintiff a duty of care, or to prove any breach of such duty of care on the part of the 2^nd Defendant.

(2)  The Judge considered that the Plaintiff’s contention that the 2006 Survey Plan was more accurate than the 2012 Survey Plan was irrelevant to establishing the liability on the part of the 2^nd Defendant due to the exclusion of the 2^nd Defendant’s liability by virtue of section 33(1) of the Ordinance as regards the accuracy of the plans and records deposited with the Director.

(3)  The Judge also considered that the proper course of action for the Plaintiff to recover any loss he claimed to have suffered from the inaccurate land survey record which disturbed the correct boundary lines of his land was to sue the surveyor, but he did not do so in the Action.

(4)  The Judge held that the failure to join the surveyor as a defendant to the Action, or to follow the proper procedures in the appropriate forum by seeking a review by the District Survey Office in Yuen Long to clarify the boundary line, and his choice of commencing the Action against the Defendants in a wrong forum, and in the case of the 2^nd Defendant, by raising a groundless negligence claim, showed that the commencement of the Action may amount to an abuse of process.

(5)  In respect of the 2^nd Defendant’s counterclaim, the Judge held that the Action was not judicial review proceedings and did not involve a negligence claim against the relevant authorised land surveyor, and the court had no jurisdiction to adjudicate the accuracy of the survey plans in dispute, or to grant a declaration that the 2012 Survey Plan was accurate.

6.The Main Judgment was amended or varied by the Judge in the Further Decision, where the Judge acknowledged that although the court had no jurisdiction to merely adjudicate on which survey plan was “more accurate”, it had jurisdiction to enforce the boundary according to the survey map maintained by the Director under section 4(a) of the Ordinance.

7.In refusing leave to appeal on 30 June 2025, [2025] HKDC 1044, the Judge held that based on the factual findings in the Main Judgment, even if he did not make such an error of law on the court’s jurisdiction, he would still not have made a declaration that the boundary between P’s Land and D1’s Land was as shown in the 2006 Survey Plan as the Plaintiff claimed, and would have granted a declaration that the common boundary should be shown in the 2012 Survey Plan, which was the remedy sought by the 2^nd Defendant (but not the 1^st Defendant).

8.By the Costs Decision refusing to vary the Costs Order originally made nisi, and in exercising his discretion on costs in favour of the 2^nd Defendant, the Judge took into account the matters set out in Order 62 rule 5 of the Rules of District Court Cap 336H (“RDC”), which he considered appropriate.  In coming to his conclusion, the Judge considered that (1) the Plaintiff’s claim and the 2^nd Defendant’s counterclaim were essentially intertwined, (2) the Plaintiff’s claim against the 2^nd Defendant to dispute the accuracy of the survey records was misconceived because he acted in disregard of section 33 of the Ordinance and failed to claim against the right defendant or through the appropriate forum, (3) a substantial amount of the court’s time at trial was spent on hearing experts’ evidence on the accuracy of various survey plans or records, in which the Plaintiff failed to adduce convincing evidence to substantiate his claim, and (4) the Plaintiff’s conduct in the proceedings was questionable.

9.On 12 December 2025, the Plaintiff’s application for leave to appeal against the Costs Decision was refused by the Judge, [2025] HKDC 2087 (“Leave Decision”), on the basis that there was no reasonable prospect of success on any of the Plaintiff’s intended grounds of appeal.  The Judge also held that the 2^nd Defendant would have succeeded on its counterclaim but for the error of law committed by the Judge in relation to the court’s jurisdiction to enforce the correct boundary in accordance with the survey map maintained by the Director.

C.  The Present Application

C.1  Introduction

10.By summons filed on 29 December 2025, the Plaintiff renewed his application for leave to appeal against the Costs Decision.  In the draft Notice of Appeal attached to the Summons, the Plaintiff advanced four intended grounds of appeal (“Ground 1” to “Ground 4” respectively) – see below.

11.There is some overlap among the intended grounds of appeal, but the core contention is that there was no basis or justification for the Judge to deprive the Plaintiff’s costs of the 2^nd Defendant’s counterclaim dismissed by the Judge.

12.The relevant principles for granting leave to appeal against a judgment of the District Court, and for granting leave to appeal against a costs order made by a judge at first instance, are well established and have been previously summarised by the Judge.  They need not be repeated here.

C.2  Ground 1

13.The Plaintiff complains under Ground 1 that the Judge erroneously characterised the 2^nd Defendant’s counterclaim because the relief sought by the 2^nd Defendant in its counterclaim was not a declaration on the accuracy of the 2012 Survey Plan, but on the ownership of the Counterclaim Area.  The Plaintiff also contends that the 2^nd Defendant’s counterclaim is distinct from and unsupported by the 2012 Survey Plan.

14.In our view, it is reasonably arguable that the Judge’s characterisation of the 2^nd Defendant’s counterclaim did not fully apprehend the scope of the declaratory relief which the 2^nd Defendant was seeking in its counterclaim.  That said, we consider that the Judge’s possible mischaracterisation at most amounts to an over-simplification in paraphrasing 2^nd Defendant’s counterclaim, but not to a misapprehension of fact in reaching the Costs Decision.

15.There is no merit in the Plaintiff’s contention that the 2^nd Defendant’s counterclaim was unrelated to or unconnected with the Plaintiff’s claim in which the Plaintiff put the accuracy of the 2012 Survey Plan at the center of the parties’ disputes.  We agree with the Judge’s view that the 2^nd Defendant’s counterclaim was not based upon any new plan produced ‘out of thin air’, but referred to and based upon the 2012 Survey Plan, in particular in relation to the material portion.

16.At trial, the 2^nd Defendant adduced expert opinion to establish that the 2012 Survey Plan was accurate: see §93 of the Main Judgment.  It is also clear from §96 of the Main Judgment that the Judge did not lose sight of the 2^nd Defendant’s counterclaim as pleaded before he looked at the substance of the 2^nd Defendant’s counterclaim, which the Judge continued to adopt in his consideration of varying costs.  We therefore do not consider the Judge’s holding that the 2^nd Defendant’s counterclaim was in substance seeking a declaratory relief on the accuracy on the 2012 Survey Plan was plainly wrong, or that the Judge’s characterisation of the 2^nd Defendant’s counterclaim gives rise to any reasonably arguable basis for the Court of Appeal to find it sufficient to interfere with the Costs Decision.

C.3  Ground 2

17.The Plaintiff complains under Ground 2 that the Judge erred in conflating the disputes between the Plaintiff and the 1^st Defendant with those between the Plaintiff and the 2^nd Defendant, and contends that the Plaintiff’s failure to pursue his claim against the 1^st Defendant was irrelevant to the determination to the costs on the 2^nd Defendant’s counterclaim.

18.The Plaintiff’s complaint is directed at the Judge’s holding at §11 of the Costs Decision that the Plaintiff’s expert failed to show the 2006 Survey Plan was more accurate than the 2012 Survey Plan, which relates to §92 of the Main Judgment.  In our view, this has no reasonable prospect of success.

19.This complaint is merely an extension of his contention under Ground 1 that the 2^nd Defendant’s counterclaim is totally unconnected with the Plaintiff’s claim, which we have rejected.  Whether or not a party has succeeded on part of his case was a relevant factor which the Judge was entitled to take into account in exercising his discretion on costs pursuant to Order 62, rule 5(1)(f) of the RDC.  The Plaintiff’s failure to establish that the 2006 Survey Plan was the accurate record in showing the correct boundary line plainly had the effect of disposing of the 2^nd Defendant’s counterclaim substantively, and was also relevant to determining the amount of time and costs incurred by and attributable to the Plaintiff in the proceedings involving substantial use of expert evidence.

20.Further, Order 62 rule 5(1)(e) of the RDC states that the court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account the conduct of all parties, and under sub-paragraph (2)(a) and (b), consider the reasonableness of a party in pursuing his claim and the manner in which he has pursued his case.  The 2^nd Defendant in pursuing its counterclaim acted fairly by putting forward a case that was less favourable to its interest and more favourable to that of the Plaintiff without blindly following the result as delineated on the 2012 Survey Plan.  This was the type of conduct of a litigant that the Judge was entitled to consider in exercising his wide discretion on costs.

C.4  Ground 3

21.Under this ground, the Plaintiff complains that there was no legal basis for the Judge to hold that the 2^nd Defendant’s counterclaim was necessitated by the Plaintiff’s dispute, or that the 2^nd Defendant should be awarded costs of its unsuccessful counterclaim even if its counterclaim was necessitated by the Plaintiff’s dispute.

22.First, the Plaintiff contends that the 2^nd Defendant raised its counterclaim out of its own free will in the proceedings, and had acted unreasonably in pursuing its counterclaim despite the Plaintiff’s confirmation of abandoning his negligence claim against the 2^nd Defendant’s before trial.  The Plaintiff points to the pre-trial correspondence exchanged between his solicitors and the Department of Justice for the 2^nd Defendant between 15 March 2024 and 15 April 2024 to show that his claim against the 2^nd Defendant was effectively abandoned before trial.  But without taking out any formal application for leave to withdraw or even securing a joint letter with the 2^nd Defendant to the like effect, we do not consider the Plaintiff’s withdrawal to be necessarily effective.  Further, the proposal in those two letters had left open the issue of costs between the Plaintiff and the 2^nd Defendant in the event of withdrawal.

23.In fact, the 2^nd Defendant had explained in its letter to the Plaintiff dated 25 March 2024 as to why its counterclaim was to be pursued in the proceedings by stating that even if the boundary disputes between the Plaintiff and the 2^nd Defendant were eventually decided in favour of the Plaintiff, there remained the unresolved issue of whether the Counterclaimed Area would form part of the Plaintiff’s Land or the Government Land, and the issue in dispute would most conveniently and appropriately be heard and determined by the Court together with the Plaintiff’s claim against the 1^st Defendant, unless the Plaintiff and the Government were able to resolve the question by way of consent.

24.Second, the Plaintiff contends that the mere fact that the 2^nd Defendant’s counterclaim was connected with the Plaintiff’s claim did not give rise to any valid or sufficient basis for the Judge to deprive the Plaintiff of his costs incurred on defeating the 2^nd Defendant’s counterclaim.

25.We think the Plaintiff’s contention has no merit.  It is trite that a trial judge has a wide discretion on costs.  In the present case, the Judge awarded the 2^nd Defendant costs of its counterclaim not solely because its counterclaim happened to come under the same set of the proceedings commenced by the Plaintiff against the 1^st Defendant, but mainly because the Judge found that the issues in dispute between the Plaintiff and the 2^nd Defendant were essentially intertwined.  The Judge was entitled to do so as a matter of principle.

26.The authorities relied on by the Plaintiff were not intended to lay down any general legal principle – let alone an inflexible rule – on how the court should exercise its discretion on costs, but were decided on their own facts and circumstances.  In this case, the 2^nd Defendant’s counterclaim was dismissed merely on a technical ground, and the Judge was entitled to take the view that the Plaintiff was not a de facto successful party to the 2^nd Defendant’s counterclaim despite the dismissal.  Further, there was plainly justification for the Judge to depart from the starting point of “costs follow event” in respect of the dismissal of the 2^nd Defendant’s counterclaim by taking into account the substance of the disputes between the Plaintiff and the 2^nd Defendant, the Plaintiff’s conduct in pursuing his claim against the 2^nd Defendant with the main objective to resolve his land boundary dispute with the 1^st Defendant, how the trial was conducted, and the overall outcome of the proceedings.

C.5  Ground 4

27.The Plaintiff complains under Ground 4 about the lack of reasoning or adequate reasoning to deal with various matters raised by the Plaintiff below.

28.This ground may be disposed of briefly.  First, the Judge rejected the Plaintiff’s complaint alleging the inadequacy in the Judge’s reasoning in the Costs Decision for reasons given at §§39-43 of the Leave Decision, where the Judge correctly identified the legal principles applicable to an intended appeal based on inadequate reasoning.  The Plaintiff has not engaged with the Judge’s reasoning, but merely repeated the same complaint, which in substance was an attempt to re-argue the points he had raised before, but which were rejected by the Judge.

29.In any event, the points set out in Ground 4 largely overlap with the Plaintiff’s contentions raised in Grounds 1 to 3 above.  Further, as an example only, the Judge had given detailed reasons at §§80-92 of the Main Judgment in rejecting the Mid-Line Practice advanced by the Plaintiff’s expert as a new theory at trial to explain the boundary line of the Plaintiff’s Land, the 1^st Defendant’s Land, the Government Land and another piece of adjoining land in the disputed area, and concluded that the Mid-Line Practice, even if accepted, the Plaintiff’s claim depending on the accuracy of the 2006 Survey Plan would have failed.  We do not consider the Judge fell into any palpable error in not repeating his reasons in the Costs Decision when the Plaintiff sought to rely on Mr Tang’s expert opinion on the Mid-Line Practice again, but this time for the purpose of the sought variation.  All the points are untenable in substance.

30.The Plaintiff also complains that the Judge erred in re-deciding the case in favour of the 2^nd Defendant’s proposed boundary line at §25 of the Leave Decision, without giving any proper reasons.  This complaint was not raised in the draft Notice of Appeal, and the Plaintiff is not permitted to raise it by way of submissions.  In any event, we consider it is totally misconceived.  There is no variation to the Judge’s ruling on the 2^nd Defendant’s counterclaim which remained dismissed despite the Judge’s acknowledgment of his error committed in relation to the court’s jurisdiction in determining the present case.  The Judge’s view at §25 of the 2^nd Leave Decision was merely in response to the Plaintiff’s invitation to the Judge to take into account his ruling in the Leave Decision, and to illustrate that the Plaintiff would still be considered as the losing party in the proceedings for the purpose of determining costs.

D.  Disposition

31.In all, we are of the view that none of the intended grounds of appeal have any reasonable prospect of success.  We do not see any reason why in the interests of justice the appeal should be heard.

32.The Plaintiff’s application for leave to appeal is dismissed, with costs to the 2^nd Defendant, to be summarily assessed.  The Plaintiff shall have leave to file and serve within 14 days from the date of this judgment a statement of objections (limited to 2 pages) to the 2^nd Defendant’s statement of costs dated 27 January 2026.

33.Lastly, since the Plaintiff’s application is without merit, we make a further order under Order 59, rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request the present determination to be reconsidered at an oral hearing inter partes.

Li, Kwok & Law, Solicitors for the Plaintiff

Ms Tessa Chan, instructed by the Department of Justice, for the 2^nd Defendant