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FCMC 5461/2014
C [2023] HKFC 142 C
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IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
MATRIMONIAL CAUSES NO 5461 OF 2014
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BETWEEN
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邱 Petitioner
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徐 Respondent
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Before: Deputy District Judge B Mak in Chambers L
Date of Petitioner’s Submission: 24 February 2023 and 14 April 2023
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Date of Respondent’s Submission: 24 March 2023
N Date of Decision: 21 July 2023 N
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P DECISION P
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R Introduction R
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1. By a summons filed on 19 December 2022, the petitioner
T applied for leave to appeal against my decision dated 21 November 2022 T
(“my decision”).
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C Legal principles C
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2. Section 63A(2) of the District Court Ordinance provides:-
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“(2) Leave to appeal shall not be granted unless the judge, the
F master or the Court of Appeal hearing the application for F
leave is satisfied that—
G (a) the appeal has a reasonable prospect of success; G
or
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(b) there is some other reason in the interests of
justice why the appeal should be heard.”
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3. The test of whether an appeal has a reasonable prospect of
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success under the new statutory provision is the same test as applied before
K the amendment to Cap 336, ie whether the applicant for leave can show K
that he has an arguable case with reasonable chances of success on appeal
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as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359. A
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reasonable prospect of success means an appeal with prospects that are
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more than “fanciful” but which do not need to be shown to be “probable”: N
see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial
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Co Ltd, HCMP 357/2011, 8 July 2011, unreported.
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4. Where the appeal is against the exercise of a discretion, the
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appellant ought to demonstrate that the decision was plainly wrong, or that
R the trial judge has taken irrelevant matters into consideration or has ignored R
relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD
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37 at p 48.
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The “Preliminary Issue” Ground
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5. In my decision, I ruled on a preliminary issue on the basis that
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the petitioner had failed to complied with Order 62 rule 35(2) of the Rules
E of the District Court in that the application for review was made out of time E
because no application for extension of time was applied for.
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G 6. On review of the court file, this was factually incorrect. As a G
matter of fact, the solicitors for the petitioner did apply for extension of
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time by a letter dated 23 June 2022. Master Maurice Lam granted an
I extension of 28 days on an unless order basis on 30 June 2022. The I
petitioner’s application was taken out on 28 July 2022, that is to say, on the
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last day of the time limit and was therefore within time.
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7. In the premises, my ruling on the preliminary issue cannot
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stand.
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The Substantive Costs Review Ground
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O 8. Indeed Mr Wing So, counsel for the petitioner, is relying on O
the “generous ambit” limb in Chan Yin Na v Union Medical Centre Ltd
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[2014] 4 HKC 158. In doing so, Mr So submitted that “it is an exercise
Q where the judge in review is invited to look at the bill and apply common Q
sense to see whether it is far too generous and there is no need to identify
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any particular errors”. Mr So further submitted that the court should look
S at the fees and compare it to the underlying billable task, and see whether S
this falls outside of the “generous ambit”.
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9. The suggested approach of Mr So is no different from asking
C the judge in review to perform the task of taxation of the items complained C
of de novo. This approach was expressly rejected by the Court of Appeal
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in Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 at
E para 29. E
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10. Mr So made no attempt to point out any error of the taxing
G master. In the review before me, he only repeated what were stated in the G
original list of objections. With due respect, he has failed to demonstrate
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any justification in the second review that the court should interfere with
I the taxing master’s decision. I
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11. In passing, I should mention that Mr So cited Dollarwell
K Investments Ltd v Donald Koo Hoi Yan, HCA 12307/1995, 6/10/2005, K
unreported, in support of his proposition. That case was a taxation review
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by the taxing master, ie the first review. As such, the said case does not
M lend support to Mr So at all. M
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The costs of the first review
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12. In the second review before me, the petitioner sought to
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reverse the costs order of the first review made by the taxing master. I
Q declined to do so because it is not the subject matter of the of the review Q
by the taxing master.
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S 13. Mr So cited Lam Sik Shi v Lam Sik Ying [2020] HKCFI 2978; S
Lam and Lai (supra) and Chan Yin Na (supra) as examples in aid.
T T
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14. Lam Sik Shi (supra) is a review of the taxing master’s ruling
C on the apportionment of costs liability between the 2 defendants. In Lam C
and Lai (supra), no argument was heard by the Court of Appeal on the
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question of costs of the appeal and the costs below. Chan Yin Na (supra)
E concerns whether counsel’s fees should be allowed as part of the costs of E
taxation.
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G 15. With due respect, none of the examples cited by Mr So is of G
assistance to the petitioner.
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I 16. I see no merits in Mr So’s submission. I
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Conclusion and order
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17. By reasons of the aforesaid, I am not satisfied that the
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petitioner’s intended appeal has reached the threshold of granting leave and
M therefore the petitioner’s summons must be dismissed. M
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Costs
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18. Costs to follow the event. I make a costs order nisi that the
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petitioner shall pay the respondent the costs of this application. Such costs
Q to be assessed summarily. Q
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19. In the absence of any application for variation by summons
S within 14 days from the date of this decision, the costs order nisi shall S
become absolute.
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20. Upon the making of the costs order absolute and for the
C purpose of summary assessment of costs, I direct that:- C
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(a) the respondent shall lodge and serve a statement of
E costs within 14 days from the date of the order absolute; E
and
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G (b) the petitioner shall lodge and serve a list of objections G
within 14 days thereafter.
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J J
( Brian Mak )
Deputy District Judge
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Mr. Wing So, instructed by H.Y. Leung & Co. LLP, for the Petitioner.
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K.T. Chan & Co., for the Receiving Party.
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