A A
HCMP 268/2023
B B
[2025] HKCFI 2706
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E MISCELLANEOUS PROCEEDINGS NO 268 OF 2023 E
____________________
F F
IN THE MATTER OF the estate of
G G
TAM LEE YAU ( 譚 利 有 ) alias
TAM LEE ( 譚 利 ), late of Flat E,
H H
15th Floor, Sky Garden, No.223 Prince
Edward Road West, Kowloon, Hong
I Kong, deceased (“the Estate” and “the I
Deceased” respectively)
J J
and
K K
IN THE MATTER OF section 56 of the
Probate and Administration Ordinance
L L
(Cap. 10)
M M
and
N IN THE MATTER OF Order 85 of the N
Rules of the High Court
O ____________________ O
P BETWEEN P
KAN YUK SUM Plaintiff
Q Q
and
R R
KAN YUK SHING (in his personal capacity
S S
and as the executor of the estate of Tam Lee Yau) Defendant
____________________
T T
U U
V V
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A A
Before: Deputy High Court Judge MK Liu in Chambers (by Paper Disposal)
B B
Date of Written Submissions by the Plaintiff: 12 June 2025
C Date of Written Submissions by the Defendant: 5 June 2025 C
Date of Reply Written Submissions by the Defendant: 18 June 2025
D D
Date of Decision: 26 June 2025
E E
_____________
F DECISION F
_____________
G G
Introduction
H H
On 14 May 2025, I handed down a decision (“the Main
I Decision”), in which I granted leave to discontinue these proceedings to I
Sum, with 80% of the costs of these proceedings to Sum. On 27 May 2025,
J J
Shing took out a summons (“the Summons”) for leave to appeal against the
K Main Decision. I have directed that the Summons be determined on paper K
without an oral hearing. The parties have lodged their respective written
L L
submissions in accordance with my directions, and I have considered the
M same. For ease of reference, the abbreviations used in the Main Decision M
are adopted herein.
N N
O There is no dispute between the parties that leave to O
discontinue these proceedings should be granted to Sum. The difference
P P
between them is who should bear the costs of the proceedings. The Main
Q Decision, in substance, is a decision on costs. It is not disputed that Shing Q
is now seeking leave to appeal against a decision on costs.
R R
S In this application, the parties are continuously represented by S
T
the same counsel, ie Sum is represented by Mr Dickson Chan, and Shing is T
presented by Mr Ronald Pang.
U U
V V
-3-
A A
The principles
B B
Leave to appeal would only be granted if the appeal has a
C C
reasonable prospect of success (which means that the prospect of success is
D reasonable and more than fanciful, without having to be probable), or there D
is some other reason in the interests of justice why the appeal should be
E E
heard.1 What is required is a reasonably arguable appeal. Merely showing
F that an appeal is “arguable” and “not fanciful” is insufficient.2 F
G G
As said in the above, Shing is now seeking leave to appeal my
H decision on costs as set out in the Main Decision. It is trite that a decision H
on costs is a decision made as a result of an exercise of discretion of the
I I
court. In order to succeed in the intended appeal, Shing has to overcome a
J high hurdle. 3 It is well-established that the Court of Appeal would not J
interfere merely because it would have reached a different conclusion had
K K
4
it been hearing the application at first instance. The Court of Appeal would
L only interfere where (a) the court below has misunderstood the law or the L
evidence, or (b) the exercise of discretion by the court below was plainly
M M
wrong such that it was outside the generous ambit within which a
N reasonable disagreement is possible. 5 The Court of Appeal is not to N
exercise an independent discretion of its own – its initial function is one of
O O
6
review only.
P P
An appeal from the judgment made by a judge of the Court of
Q Q
First Instance to the Court of Appeal is not a de novo hearing. In the notice
R R
1
High Court Ordinance, s.14AA(4); SMSE v KL [2009] 4 HKLRD 125 (CA), §17; Wong Kar Gee Mimi
S v Severn Villa Ltd [2012] 1 HKLRD 887 (CA), §29 S
2
Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 (CA), §29
T
3
Progetto Jewellery Co Ltd v Lau Chiu Ying and Another [2022] HKLRD 824 (CA), §36 T
4
Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] 5 HKLRD 30 (CA), §5
5
Wong Kar Gee Mimi (supra), §31
U U
6
Harbour Front Ltd v Money Facts Ltd and Others [2019] HKCA 916, §6
V V
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A A
of appeal, the appellant has to identify a justifiable basis upon which the
B B
Court of Appeal may interfere in the decision of the judge below. The
C appeal is not a retrial or a de novo rehearing of the application which has C
already been determined by the court below.7
D D
E E
The mere fact that certain matters relied on by counsel were
F
not mentioned in the judgment does not mean that the judge had not taken F
them into consideration. Nor is the judge required to address all the points
G G
made by counsel, whether legal or factual.8
H H
Grounds of appeal
I I
The grounds of appeal as set out in the Draft Notice of Appeal
J J
annexed to the Summons are as follows:
K “1. The learned Judge was plainly wrong in law in finding K
that the present proceedings constituted a hostile action and
L fell within the third category of the principles in Re Buckton, L
when in fact it should fall within the second category;
M 2. The learned Judge’s approach was inherently M
contradictory with his finding above, as he considered
irrelevant factors such as the reasonableness of the actions of
N the Defendant after placing the present case within the third N
category of Re Buckton, when such considerations go to the
O
piercing of the inherent indemnity under the second category; O
3. The learned Judge erred by considering “it cannot be
P
said that Sum was acting unreasonably by commencing these P
proceedings” in ordering costs against the Defendant, as this
is an irrelevant factor and not a factor that should be
Q considered; Q
4. The learned Judge erred in holding that “Shing’s
R motive and/or intention is also not relevant” in the context of R
considering whether the Defendant should be awarded costs,
and a such failed to consider this as a relevant factor;
S S
5. The learned Judge erred in law by distinguishing
Chang Wing Ka John v Chang Wing Dee [2021] HKCFI 47 as
T T
7
莊裕安 v 安達人壽保險有限公司及另一人 [2022] HKCA 1593, §17
U U
8
Harbour Front Ltd (supra), §9
V V
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A A
irrelevant when the Defendant herein had demonstrated
B substantial compliance with his duties to furnish estate B
accounts and there were no proper or meaningful criticisms
C raised by the Plaintiff to such accounts and inventory; C
6. The learned Judge was plainly wrong in finding that
D the Plaintiff’s refusal to accept the Defendant’s offer to D
discontinue the present proceedings on a no order as to costs
basis made by way of without prejudice letters dated
E 17th March 2023 and 10th January 2025 (“WP Offers”) on two E
separate occasions were not unreasonable refusals;
F 7. The learned Judge failed to take into account the F
following relevant factors:-
G (a) the Defendant never refused to provide the Supporting G
Documents and in fact provided the same shortly after
these proceedings were commenced;
H H
(b) the Defendant provided the Plaintiff, directly, estate
accounts and inventory on 24th November 2022
I I
shortly after receiving the Plaintiff’s request on
17th November 2022;
J J
(c) the Plaintiff’s request for the Supporting Documents
was the first ever request for such documents
K notwithstanding the fact that the Defendant had been K
executor of the Estate since 8th February 2011;
L (d) Estate had already been distributed by 24th November L
2022 and there were no funds for the Defendant to
defray his expenses arising out of the provision of
M estate accounts and inventory and/or the Supporting M
Documents, but the Defendant provided the same
N anyway; N
(e) by putting forward the WP Offers, the Defendant had
O essentially agreed to bear the costs of providing the O
estate accounts and inventory and the Supporting
Documents, notwithstanding his entitlement to an
P indemnity from the Estate which militates any P
unreasonableness (which is not admitted) on the part
of the Defendant prior to the commencement of these
Q Q
proceedings;
(f) that if the WP Offers were accepted, the result would
R R
be the same or very similar to the order dated 14th May
2025 (save and except the Summons which would not
S have been necessary); S
(g) that the Defendant was an in-person litigant of
T advanced age and had limited education, at the T
material time, which necessarily impacts the factual
finding of whether the Defendant was dilatory and/or
U U
acting unreasonably, in particular taking into account
V V
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A A
when the Defendant received the request for the
B Supporting Documents from the Plaintiff; B
(h) the relief sought in the Originating Summons was not
C merely for the provision of the Supporting Documents C
and the Plaintiff could have commenced these
D proceedings in any event, even if the Defendant D
provided the Supporting Documents prior to these
proceedings;
E E
(i) that the relationship between the Plaintiff and the
Defendant was acrimonious and therefore the
F Defendant’s approach to the matter was reasonable. F
8. The learned Judge was plainly wrong in drawing the
G conclusion “…had the Supporting Documents been produced G
by Shing prior to the commencement of the proceedings herein,
Sum would have had no need to issue these proceedings”,
H H
given that the relief sought in the Originating Summons was
not merely for the provision of the Supporting Documents.”
I I
Discussion
J J
With respect, I am of the view that Shing has failed to show a
K K
reasonable prospect of success in his appeal by relying upon the grounds as
L
set out in the Draft Notice of Appeal. L
M
(1) I have set out the reasons why I considered that this case is M
within the third category of the principles in the Re Buckton
N N
case, and why I considered that there should be a costs order
O in favour of Sum and against Shing personally in §12 of the O
Main Decision. Having considered all the grounds of appeal
P P
proposed by Shing, in my view, Shing has not addressed in
Q what way it can be said that this Court was plainly wrong in Q
the analysis as set out in §12 of the Main Decision.
R R
(2) As set out in §10 of the Main Decision, in accordance with the
S S
Court of Final Appeal’s decision in Cheng Pui Yuen v
T Worldcup Investments Inc 9 , to determine costs in T
U U
9
(2009) 12 HKCFAR 31
V V
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A A
administration proceedings is an exercise of judicial
B B
discretion, with reference to the principles and based upon the
C particular circumstances of the case before the court. Each C
case would depend upon its own facts. In order to impeach the
D D
exercise of discretion as set out in the Main Decision, Shing
E E
has to point out that this Court has misunderstood the law or
F
the evidence, or the exercise of discretion was plainly wrong F
such that it was outside the generous ambit within which a
G G
reasonable disagreement is possible. I am not persuaded that
H Shing has shown a reasonable prospect of success in H
overcoming this high hurdle.
I I
(3) As to Ground 5, I am not persuaded that I was plainly wrong
J J
in the analysis as set out in §12(5) of the Main Decision.
K K
(4) As to the matters set out under Ground 7(a) to (d), those
L matters have been set out in §4 of the Main Decision, and I L
have taken the same into account.
M M
(5) As to the costs incurred by Shing in preparing the Supporting
N N
Documents and providing the same to Sum (see Ground 7(d)
O and (e)), the matter has been addressed in §17 of the Main O
Decision.
P P
(6) I do not accept Ground 7(f). In the two offers made by Shing,
Q Q
Shing proposed that there should be no order as to costs of
R these proceedings. However, under the costs order made in R
the Main Decision, Shing would have to bear 80% of the costs
S S
of these proceedings.
T T
(7) Ground 7(h) has been addressed in §12(4) of the Main
U Decision. U
V V
-8-
A A
(8) In §12(1)(c) of the Main Decision, this Court said:
B B
“Sum made a request for the Supporting Documents on
C 5 December 2022, and repeated the request on 13 January C
2023 (assuming that Shing did not receive Sum’s solicitors’
D letter dated 13 December 2022, and Shing only came to be D
aware of the contents of Sum ’ s solicitors’ letter dated
3 January 2023 by reading the Chinese translation of the
E same enclosed in Sum’s solicitor’s letter dated 13 January E
2023). From the time when P made the request for the
F Supporting Documents (ie 5 December 2022) to the time F
when P issued the OS and commenced these proceedings
(ie 21 February 2023), around 2½ months lapsed. During
G these 2½ months, Shing did not provide the Supporting G
Documents to Sum, nor requested for time to prepare the
Supporting Documents. There is no explanation from
H H
Shing as to why he did not do so in these 2½ months.
There is also no suggestion from Shing that a period of
I 2½ months would not be sufficient for him to prepare the I
Supporting Documents with reasonable diligence.”
(Emphasis added)
J J
Ground 7(g) and (i) cannot constitute any basis upon which it
K K
can be said that my ruling in §12(1)(c) of the Main Decision is
L plainly wrong. As a matter of fact, the points made in §12(1)(c) L
of the Main Decision have not been addressed by any evidence
M M
from Shing.
N N
Having considered all the grounds of appeal proposed by
O O
Shing, I am not satisfied that by those grounds collectively, or by any of the
P grounds individually, Shing has demonstrated a reasonable prospect of P
success in his intended appeal. I also do not see any other reason in the
Q Q
interests of justice why the appeal should be heard. Accordingly, the
R Summons must be dismissed. R
S S
Costs should follow the event. Sum seeks indemnity costs. In
T my view, there is no sufficient justification for indemnity costs in this T
application. Costs would be summarily assessed on party and party basis.
U U
V V
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A A
Disposition
B B
I dismiss the Summons.
C C
D Costs of the Summons be paid by Shing personally to Sum D
E
forthwith, and those costs be summarily assessed at HK$50,000. E
F F
I thank both counsel for the assistance provided to the Court.
G G
H H
I I
(MK Liu)
J Deputy High Court Judge J
K K
Mr Dickson Chan, instructed by Robertsons, for the Plaintiff
L L
Mr Ronald Pang, instructed by Ng, Lie, Lai & Chan, for the Defendant
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V