Wong Yuen Han v. Wong Shing Chung and Others

HCA 458/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 458 OF 2013

_________________________

BETWEEN

_________________________

__________________________________

REASONS FOR DECISION

__________________________________

I. INTRODUCTION

1.On 3 December 2013, the 1^st plaintiff and Steven Chan (“Mr Chan”) issued a summons pursuant to section 32 of Crimes Ordinance Cap 200 (“Ordinance”) seeking the following reliefs (“Summons”):

“To report to the Court for actions on the Defendant 1’s or D1’s 2^nd False Affirmation dated 21 November 2013 and an earlier affirmation dated 13 June 2013, including dismissal of the False Affirmations.

Please see the attached Affirmation for more details and exhibit.

And that the costs of this said application be paid by Defendants D1 and D3 and/or their legal representative under Practice Direction 14.5 to the Plaintiffs Wong Yuen Han and Steven Chan.”

2.On the same day, the 1^st plaintiff and Mr Chan filed their affirmation in support of the Summons (“Joint Aff”). The Summons and the Joint Aff were served on the solicitors for the 1^st and 3^rd defendants (“D1” and “D3”, collectively “D1/D3”).

3.Since the commencement of the present action, the 1^st plaintiff has no legal representation and acts in person. Until his claim was struck out on 8 January 2014, Mr Chan also acted in person.

4.As alluded to above, on 8 January 2014, Master J Wong struck out the claim by Mr Chan as the 2^nd plaintiff against all four defendants.  In the circumstances, he is no longer a party to the present action and has no further locus standi to continue with the Summons, hence his application by the Summons falls to be dismissed.  The outstanding application at the hearing on 15 January 2014 is the 1^st plaintiff’s application under the Summons.

II.  BACKGROUND

5.Mr Wong Cheong Sing (“Father”) and Madam Au Yeung Pui Hing (“Mother”) were married in 1952. The 1^st plaintiff is their eldest daughter, and D1 and the 2^nd defendant (“D2”) are their sons.  Mr Chan is the 1^st plaintiff’s husband, D3 is D1’s wife and the 4^th defendant (“D4”) is D2’s wife. D2 and D4 are collectively referred to as “D2/D4”.

6.The Father died intestate on 15 January 1995. Letters of administration were granted to the Mother on 27 July 1995.  The Mother died in 2003 having previously made a will in 1995, in which she named D1 as her executor.  D1 obtained a grant of probate on 3 May 2005.

7.The present action, which commenced on 14 March 2013, concerns a family dispute over the distribution of the estates of the Father and the Mother (collectively, “Parents”) amongst the three siblings, ie the 1^st plaintiff, D1 and D3.

8.According to the Statement of Claim, the 1^st plaintiff claims that her siblings D1 and D2 and their wives D3 and D4 misappropriated or converted real properties, rental income and sale proceeds thereof, shares, dividends, investments, chattels (eg jewelry and air conditioners), insurance payments, condolence monies, monies in bank accounts and other assets from the estates of the Parents (collectively, “Estates”).  She claims that she has not received any satisfactory reply to her queries in respect of the administration of the Estates from them, so as beneficiary under the Estates she now sues the defendants for inter alia (a) account and enquiries, (b) proper administration of the Estates, (c) return of properties and assets belonging to the Estates, (d) damages she has suffered, and (e) other reliefs.

9.D1/D3 and D2/D4 deny any wrongdoings in their respective Defence filed on 19 and 4 July 2013.  D1 further claims that on divers dates between 4 February and 23 March 2011, he has paid an aggregate sum of $1,189,192.28 to the 1^st plaintiff being her entitlement to the Mother’s estate under her will.

10.On 19 and 18 July 2013, the 1^st plaintiff filed her respective Reply to the respective Defence filed by D1/D3 and by D2/D4.  Essentially, she disputes the allegations by the defendants.

III.  PROCEDURAL HISTORY  FOR SUMMONS

11.The Summons complains against two affirmations, ie D1’s affirmation filed on 14 June 2013 (“14/6/13 Aff”) and D1’s 2^nd affirmation filed on 22 November 2013 (“22/11/13 Aff”).  I set out below the procedural history that relates to these two affirmations.

(a)  14/6/13 Aff

12.On 6 June 2013, the 1^st plaintiff and Mr Chan filed (a) a summons seeking summary judgment against D1/D3 (“Order 14 Summons”) and (b) their joint supporting affirmation. In their joint supporting affirmation, the 1^st plaintiff and Mr Chan claim that D1 has made an admission as to his wrongdoings by saying something like “Yes, I have cheated and embezzled Dad’s and Mom’s assets (or the family’s Estate). It’s all now under my name and what you (means [the 1^st plaintiff]) can do about it” after a relative’s birthday dinner gathering at/about 9:30pm on/about 25 February 2009 at D1’s home in the presence of D3, the 1^st plaintiff and Mr Chan (“Alleged Admission”).  The 1^st plaintiff and Mr Chan claim they are entitled to enter judgment against D1 on such “admission of guilt”.

13.On 14 June 2013, D1/D3 filed the 14/6/13 Aff in opposition. In such affirmation, D1 states he has been authorised by his wife D3 to make such affirmation to oppose the Order 14 Summons.  He denies he has made the Alleged Admission “at the aforesaid date, time and place or any at all”.  He has been informed and verily believes there is an arguable defence to the Order 14 Summons, and he asks the court to dismiss the same with costs to D1/D3.

14.On 25 June 2013, the 1^st plaintiff and Mr Chan have filed their affirmation in reply. In such affirmation, they query whether D3 has concurred with the 14/6/13 Aff, and if so, they suggest that D3 should co-sign or co-affirm such affirmation. They also query the basis for D3’s authorisation to D1 and ask for a copy of the relevant document.  They also ask for clarification as to who has provided information and documents to D1 for making such affirmation, and who has informed him there is an arguable defence.  They also warn that making an affirmation is a serious endeavour with serious consequences, and that making a false statement with/without oath may attract imprisonment to 7-10 years, hence the solicitors for D1/D3 should be sure that D1/D3 are aware of this.

15.On 25 June 2013, the 1^st plaintiff and Mr Chan have filed another affirmation in reply responding to the skeleton submissions and hearing bundle lodged and served on behalf of D1/D3.

16.The Order 14 Summons was scheduled to be heard before Anthony Chan J on 17 June 2013.  But such hearing was vacated due to automatic legal aid stay.  Since then, the Order 14 Summons has not been restored for hearing.

(b)  22/11/13 Aff

17.On 29 July 2013, the 1^st plaintiff and Mr Chan have filed (a) a summons pursuant to Order 18 rule 19 of the Rules of the High Court (“RHC”) and Practice Direction 19.1 (“PD19.1”) to strike out the Defence of D1/D3 dated 19 July 2013 (“Strike Out Summons”), and (b) their joint supporting affirmation.

18.By the order of Master Ho dated 25 October 2013, leave was given inter alia for (a) the 1^st plaintiff and Mr Chan to re-serve their supporting affirmation and to file and serve a supplemental supporting affirmation, (b) D1/D3 to file and serve affirmation in opposition, and (c) the 1^st plaintiff and Mr Chan to file and serve affirmation in reply.

19.On 8 November 2013, the 1^st plaintiff and Mr Chan have filed and served their revised supporting affirmation.  By such revised affirmation, the 1^st plaintiff and Mr Chan inter alia:

(a) refer to the pleadings, witness statements, transcript of an alleged recording of the defendants admitting to their wrongdoings, and other allegedly relevant documents;

(b) refer to documents from the defendants and inter partes correspondence;

(c) claim the above documents show that the defendants have committed crimes as detailed in the Statement of Claim;

(d) claim that “[although] the above-mentioned TRANSCRIPT of the Recording may not cover all the Crimes conversed or talked about in the Recording, but [they] believe it is more than enough the learn the big picture as to how the Crimes committed by the Defendants”;

(e) suggest that “[the] wrongdoings depicted by the 25 pages of the documents described here [ie privileged documents and materials] would help show the seriousness of the problems caused by the Defendants. And these are just some tips of the iceberg”.

20.On 22 November 2013, D1/D3 have filed the 22/11/13 Aff in opposition.  In the 22/11/13 Aff, D1 states he has been duly authorised by D3 to make such affirmation on behalf of himself and D3.  D1 claims inter alia that:

(a) it has been difficult for him to respond to the revised affirmation of the 1^st plaintiff and Mr Chan which is extremely confusing;

(b) the 1^st plaintiff and Mr Chan have failed to explain why the Defence of D1/D3 ought to be struck out pursuant to Order 18 rule 19 of the RHC and PD19.1, and hence they have failed to demonstrate that this is a “plain and obvious” case where the Defence ought to be struck out;

(c) although the 1^st plaintiff and Mr Chan claim the Defence should be struck out pursuant to “the broad grounds [they] will rely in the above documentation, recording and the privileged materials”, they have failed to deliver some of the exhibits and to demonstrate how the delivered exhibits are relevant to the issue of why the Defence of D1/D3 ought to be struck out on one or more grounds under Order 18 rule 19 of the RHC, especially when such documents reveal that the matters in dispute turn on credibility of witnesses which can only be resolved at trial;

(d) it is inappropriate and premature for the 1^st plaintiff and Mr Chan to exhibit their respective witness statements to their revised affirmation, hence D1 will not respond to such witness statements even though they contain factual errors and unsubstantiated allegations;

(e) it is inappropriate and procedurally wrong for the 1^st plaintiff and Mr Chan to include in their revised affirmation a “Statement of Claim (Expanded Detailed Version)” as a purported attempt to amend their pleadings;

(f) even though the 1^st plaintiff and Mr Chan have exhibited a number of documents that purport to support their case as stated in their “Statement of Claim (Expanded Detailed Version)”, they have failed to explain why such documents are relevant to the issue of why the Defence of D1/D3 ought to be struck out;

(g) the Strike Out Summons should be dismissed.

21.The adjourned hearing for argument in respect of the Strike Out Summons was returnable before Master J Wong on 8 January 2014. Upon considering all the affirmation evidence (including the 22/11/13 Aff), authorities and submissions by the 1^st plaintiff and D1/D3, the learned master dismissed the Strike Out Summons on the basis that the respective case of the 1^st plaintiff and D1/D3 turns on factual disputes that can only be resolved after examination of witnesses at trial and not on affirmations, documents and submissions alone.

IV.  SUMMONS

22.By the Summons, the 1^st plaintiff seeks an order to “report to the Court for actions” on the 14/6/13 Aff and 22/11/13 Aff, “including dismissal of the False Affirmations” pursuant to “Chapter 200 section 32”.

23.In the Joint Aff, the 1^st plaintiff and Mr Chan have stated as follows:

“We have the following to state and report to the Court for actions as to why [the 14/6/13 Aff and 22/11/13 Aff] are false and that the D1’s legal representative Tommy P.F. Li may have conveyed, misled and intentionally withheld important material facts from his client (D1), and/or D1 himself withheld important material facts in executing the affirmations.

We have first met the legal representative Tommy P.F. Li of D1 & D3 and when we hand-delivered the documents on 8 November 2013 to Tommy P.F. Li at his office, he gave us some impressions that led us to have some sympathy for him.

This could be due to the fact that he has some mishap in physical conditions or something else. So we refrained from doing things that might hurt his feelings or something like that.

With [the 22/11/13 Aff] came in lately, we realized that we might have misplaced the sympathy.

As the Court would see more clearly after perusing this our affirmation that the legal representative Tommy P.F. Li and his clients D1 & D3 will continue to cause NOT only lots of delays in the fair process of the Court and Justice Systems by carrying out unnecessary, irresponsible, inappropriate and wasteful actions, but also have become worse including breaking the Laws like their recently executed 2^nd affirmation in question.

We strongly feel that the Court should stop and punish these continued actions accordingly before they cause further more severe problems.

Please see the attached EXHIBITED FACTS for more details, reasons and facts.”

24.The 24-page co-called “Facts” exhibited to the Joint Aff contains excerpts from various parts of affirmations, letters, notice and other documents by the 1^st plaintiff and Mr Chan together with their assertions and observations (“Exhibit”).  The Exhibit essentially contains their multiple complaints against the 14/6/13 Aff and 22/11/13 Aff as well as against the conduct of the present action by D1/D3 and their legal representatives.  I do not intend to repeat such multiple complaints by the 1^st plaintiff and Mr Chan save to say that I have carefully considered the same.  

25.At the hearing on 15 January 2013, after considering the written submissions by Mr Lee, counsel for D1/D3, who had nothing to further add to such written submissions, and after hearing oral submissions from the 1^st plaintiff, I dismissed the Summons with costs to be paid by the 1^st plaintiff to D1/D3 summarily assessed at $15,000 to be paid within 14 days.  I have reserved my reasons for decision, which I now hand down.

V.  DISCUSSION

(a)  Crimes Ordinance Cap 200 (“Ordinance”)

26.The starting point is the 1^st plaintiff’s reliance on “Chapter 200 section 32”.  I presume this refers to section 32 of the Ordinance which provides as follows:

“If any person being required or authorized by law to make any statement on oath for any purpose and being lawfully sworn (otherwise than in a judicial proceeding) willfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true, he shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 7 years and to a fine.” (my emphasis)

27.Section 28 of the Ordinance provides that “judicial proceeding” includes a proceeding before any court, tribunal or person having by law power to hear, receive and examine evidence on oath.

28.Since the 14/6/13 Aff and 22/22/13 Aff as filed by D1/D3 in the present action are plainly so filed in the course of a proceeding before a court having power to hear, receive and examine evidence on oath, such affirmations are exempt from section 32 of the Ordinance, and the Summons premised on such provision cannot be sustained.

29.Indeed, at the hearing on 15 January 2014, the 1^st plaintiff conceded that her reliance on section 32 of the Ordinance is erroneous, and she instead relies on sections 16, 40, 42 and 46 of the Ordinance.  These provisions, none of which has been referred to in the Summons at all, create various criminal offences, and provide for the maximum level of sentences (imprisonment and/or fine) that may be imposed upon conviction for such offences.  I am unable to see how such provisions can aid the 1^st plaintiff’s application under the Summons.  This court exercises civil and not criminal jurisdiction in the present action, and without any conviction against D1/D3 of any of the alleged offences, there is, quite simply, no basis to “punish” or sentence D1/D3 and/or their solicitor (who in fact is not even a party to the present action).  

30.Further, these provisions do not provide any basis for the relief sought in the Summons, ie an order “to report to the Court for actions on the [14/6/13 Aff and 22/11/13 Aff] ……”  Generally speaking, where affidavits have been filed in support of or opposition to an interlocutory application, the court will consider such affidavits (unless they are wholly irrelevant) for the purpose of the adjudication of such application.  Challenge made against the factual contents of any such affidavit is normally by way of affidavit evidence adduced by and/or written/oral submissions made by the opposing party at the substantive hearing for argument in respect of the interlocutory application.  There is no need for the opposing party to either state and report to the court of their objection by separate application or seek an order directing them to do so.

31.Turning to the 1^st plaintiff’s present request to dismiss the 14/6/13 Aff and 22/22/13 Aff, it has been suggested that their contents were false and infringe sections 16, 40, 42 and 46 of the Ordinance.  At the present stage, there is insufficient basis for me to come to such conclusion.

32.In respect of the 14/6/13 Aff, there is plainly factual dispute between the parties over the Alleged Admission.  The 1^st plaintiff and Mr Chan assert that D1 made the Alleged Admission, but D1 denies this.  Even if D1 has said anything that the 1^st plaintiff may arguably seize on to suggest that it amounts to an admission, the court will need to consider (or even make findings) as to the relevant factual matrix to place the Alleged Admission in its proper context. In my view, it is unlikely that such factual dispute can be resolved simply on affidavit evidence without the court making any finding of fact upon assessing the weight and credibility of witness evidence.  Still further, even if the 1^st plaintiff contends otherwise, she has not seen fit to restore the Order 14 Summons for determination by the court.  I am of the view there is no or no sufficient basis for a pre-emptive application to “dismiss” the 14/6/13 Aff at this stage.

33.In respect of the 22/11/13 Aff, such affirmation has already been considered by Master J Wong at the hearing of the Strike Out Summons on 8 January 2014.  He has not seen fit to “dismiss” the 22/11/13 Aff; rather he has come to the view that the case of the 1^st plaintiff as evident from the affirmations filed by the plaintiff and Mr Chan and the case of D1/D3 as evident from the 22/11/13 Aff raise factual disputes that can only be resolved after examination of witnesses at trial and not on affirmations, documents and submissions.  Since there have been no factual findings by the court as yet, there is at this stage no basis for concluding that the factual contents in the 22/11/13 Aff are false.

34.Criticism has been raised about D1/D3 and their solicitor withholding information in the 14/6/13 Aff and 22/11/Aff, their solicitor’s failure to make an affirmation in opposition himself, D1’s failure to provide information/documents to prove he has been authorised by D3, D3’s failure to co-affirm such affirmations, and D1’s failure to disclose who gave him legal advice as to the existence of an arguable defence.  In my view, there is no merit in these criticisms.

35.It is not for the 1^st plaintiff to dictate how much or how little affirmation evidence D1/D3 want to adduce to oppose the Order 14 and Strike Out Summonses.  Nor can she dictate which person should be the deponent to make an affirmation for D1/D3 or what documents D1/D3 should produce and exhibit to the affirmations in opposition.  Obviously, she cannot seek privileged information on matters of litigation legal advice received by D1/D3 or any legal advice as between D1/D3 and their solicitors.  If the 1^st plaintiff considers the affirmation evidence by D1/D3 to be inadequate, it is for her to raise that in her affirmation in reply or in her submissions to the court, and for D1/D3 to bear the risk of possible adverse outcome if their affirmations are truly inadequate.  However, the 1^st plaintiff has not even restored the Order 14 Summons for hearing, and notwithstanding her complaint of the inadequacies of the 22/11/13 Aff, Master J Wong has already concluded that D1/D3 have shown sufficient basis for him to dismiss the Strike Out Summons.

36.It is also suggested that the solicitors for D1/D3 should let the 1^st plaintiff know whether they have any questions or problems at the time when the affirmations/documents of the 1^st plaintiff and Mr Chan were delivered to them, and if no question has been raised, then the 1^st plaintiff can rightfully assume there is no problem. In my view, insofar as such complaint relates to affirmations served by the 1^st plaintiff, there is no merit in such argument.  The acknowledgment of receipt by the solicitors for D1/D3 makes clear they have only received exhibits 3a-c of the revised affirmation by the 1^st plaintiff and Mr Chan.[1] There is no acknowledgment of receipt for exhibits 3e-f of such revised affirmation, and (irrespective of whether the solicitors for D2/D4 have chosen to raise any complaint or not) I cannot see why D1/D3 and/or their solicitors should be debarred from raising in the 22/11/13 Aff the matter of their non-receipt of exhibits 3e-f of the revised affirmation of the 1^st plaintiff and Mr Chan. Anyway, unless an acknowledgment of receipt of documents expressly provides so, it does not mean that the receiving party agrees to the contents of the received documents.

37.In the Exhibit, the 1^st plaintiff has set out a litany of complaints against D1/D3 and their solicitors for allegedly unnecessary, irresponsible and wasteful actions in their conduct of the present action that prolonged and delayed the court process.  I am unable to see how these broad complaints justify specifically the dismissal of the 14/6/13 Aff when D1/D3 have filed such affirmation in opposition to the Order 14 Summons (as they are entitled) and it is the 1^st plaintiff who has not seen fit to restore the Order 14 Summons for hearing. In respect of the 22/11/13 Aff, it has been filed by D1/D3 to oppose the Strike Out Summons (as they are entitled to pursuant to the order of Master Ho dated 25 October 2013),[2] and indeed the Strike Out Summons has been heard and disposed of on 8 January 2014.  The broad complaints have no or no further relevance in relation to the 14/6/13 Aff and 22/11/13 Aff.

38.I do not propose to deal with the 1^st plaintiff’s factual disputes over the contents of the 22/11/13 Aff as raised in the Exhibit.  These matters, if they are to be raised at all, should have been raised by way of affirmations and submissions at the hearing of the Strike Out Summons before Master J Wong on 8 January 2014.  In any event, having considered such contentions by the 1^st plaintiff in the Exhibit, I am not persuaded they in any way detract from Master J Wong’s reasons for dismissal of the Strike Out Summons.[3]

39.At the hearing on 15 January 2014, the 1^st plaintiff has queried why there is no court seal or stamp on the 14/6/13 Aff and 22/11/13 Aff.  However, it is not a requirement under Order 41 of the RHC for affirmations to be sealed or stamped by the court.

40.I have carefully considered the 1^st plaintiff’s other assertions, contentions and complaints, and see no merit in them.  The fact that I do not set them out in detail does not mean that I have not given them due consideration.

41.As a matter of prudence and in fairness to the 1^st plaintiff who is without legal representation, Mr Lee in his written submissions has explored the possibility of an argument being raised that the 14/6/13 Aff and the 22/11/13 Aff be struck out pursuant to Order 41 rule 6 of the RHC (even though such argument has not been raised by the 1^st plaintiff).

42.Order 41 rule 6 of the RHC provides that “[the] Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive”. Chan Woon Fui v Chan Wing Suen & ors summarised the principles as follows:[4]

“(1) Scandalous has the same meaning in Order 41 rule 6 as it does in Order 18 rule 19 dealing with the striking out of pleadings. Thus, degrading, indecent and offensive charges made in an affidavit will be regarded as scandalous if they are irrelevant or inadmissible in evidence to prove any material allegation in the petition (see e.g. Cashin v Cradock (1877) 3 Ch 376; Christie v Christie (1873) LR 8 Ch App 499, in the context of striking out a pleading);

(2) Matters which are material will not generally be struck out even if they are offensive, although where unnecessary detail is given, that may be susceptible to being struck out (see e.g. Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings).

(3) Irrelevant matter may be struck out even if not scandalous (Re J (An Infant) [1960] 1 All ER 603).

(4) It is wrong to include argumentative material in affidavits and such material may be struck out (see e.g. Deak v Deak Perera Far East Limited [1991] 1 HKLR 551).

(5) The court may take one of three approaches to an affidavit in which there is scandalous, irrelevant or oppressive matter:-

(a) It may decline to strike the matter out, on the basis that it is capable of excluding such material from its mind when deciding the issues which arise for decision; or

(b) It may think it appropriate to strike out some or all of the material complained of; or

(c) It may, in an extreme case, order the entire affidavit to be taken off the court file.

Which of these courses is adopted will depend on the circumstances of the case, regard being had to the nature and extent of the objectionable material.”

43.In respect of the 14/6/13 Aff, it has been filed to oppose the Order 14 Summons, to refute the 1^st plaintiff’s assertion of the Alleged Admission, and to depose that D1 has been informed and verily believes there is an arguable defence.   I agree with Mr Lee there is nothing scandalous in the 14/6/13 Aff.  Its contents are material and relevant even though the 1^st plaintiff disagrees with such contents.

44.In respect of the 22/11/13 Aff, it sets out the case of D1/D3 in answer to the Strike Out Summons.  In short, it points out what is perceived to be the procedural and substantive inadequacies of the Strike Out Summons and the affirmation evidence filed by the 1^st plaintiff in support of such summons.  Again, I see nothing scandalous about the 22/11/13 Aff.

45.For all of the above reasons, I dismissed the Summons at the hearing on 15 January 2014.

46.Mr Lee asks for costs of the Summons in favour of D1/D3 against the 1^st plaintiff.  He refers to a “without prejudice save as to costs” letter dated 9 January 2014 by the solicitors for D1/D3 to the 1^st plaintiff, which highlights the outcome of the Strike Out Summons heard before Master J Wong on 8 January 2014, and urges the 1^st plaintiff to withdraw the Summons with no order as to costs.  Mr Lee submits that since there has been no response to such offer and the outcome of the Summons at the hearing on 15 January 2014 does not better such offer, D1/D3 are entitled to costs.  I agree.  In any event, even without the above “without prejudice save as to costs” offer, there is no reason why costs should not follow event.

47.Mr Lee asks for such costs to be awarded on indemnity basis. Having considered his submissions, I do not regard the 1^st plaintiff’s application as being outside the realms of usual hostile litigation.  I consider that party-and-party basis is appropriate.

48.Mr Lee also asks for summary assessment of the costs awarded.  A statement of costs has been submitted together with his written submissions in compliance with paragraph 8 of Practice Direction 14.3.  The 1^st plaintiff considers the costs sought by D1/D3 in the sum of $48,400 (on indemnity basis) excessive and asks for costs to be taxed in any event.

49.However, I agree with Mr Lee that the present application, which falls within a small compass and which does not require an extended hearing, is fit for summary assessment rather than detailed taxation.  Further, in Midland Business Management Ltd v Lo Man Kui (No 2),[5] Lam J (as he then was) said as follows:

“9. Under the Civil Justice Reform, the court is encouraged to order immediate payment of costs of interlocutory proceedings and if possible by way of summary assessment of costs. The objective is to discourage unnecessary and disproportionate interlocutory applications. It is recognised that the lack of immediacy of orders to pay costs “in the cause” or “in any event” weakens costs as a sanction against unwarranted applications or resistance”, see paras.529-536 of the Final Report of the Chief Justice’s Working Party on Civil Justice Reform. ……

12. …… after Civil Justice Reform the court is more astute to the impact of costs on legal proceedings and an order for immediate payment of costs will be made more readily as a discipline against unmeritorious interlocutory applications.”[6]

50.I have therefore summarily assessed costs in favour of D1/D3. On a broad-brush basis, I assess such costs as are necessary or proper for the Summons to be $15,000.  The 1^st plaintiff asks for time to pay.  Mr Lee concedes (and I so direct) that 14 days be allowed for payment of such assessed costs.

The 1^st plaintiff appeared in person

Mr Joseph Lee, instructed by Edmund W H Chow & Co, for the 1^st and 3^rd defendants