THE PUI YING MIDDLE SCHOOL OF HONG KONG v. THE HONG KONG COUNCIL OF THE CHURCH OF CHRIST IN CHINA

HCA 1991/2016 and HCA 3314/2016 (Heard Together) [2023] HKCFI 1288 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1991 OF 2016 ________________ BETWEEN THE PUI YING MIDDLE SCHOOL OF HONG KONG 1st Plaintiff LEE WAI TING WILLIAM 2nd Plaintiff LI CHI KIN DANIEL 3rd Plaintiff (Discontinued) LEUNG CHUEK MAN 4th Plaintiff and SO SHING YIT ERIC 1st Defendant BETTSY NG 2nd Defendant YUNG CHUEN HUNG 3rd Defendant MA CHI MAN JICK 4th Defendant FUNG SAU CHUNG 5th Defendant (Discontinued) LI KAM CHEONG 6th Defendant CHAN YEE YEE 7th Defendant ________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 3314 OF 2016 ________________ BETWEEN THE PUI YING MIDDLE SCHOOL OF HONG KONG Plaintiff and THE HONG KONG COUNCIL OF THE CHURCH OF CHRIST IN CHINA Defendant ________________ Before: Deputy High Court Judge Man, SC in Chambers Dates of Written Submissions: 15 and 22 February 2023 Date of Decision: 12 May 2023 D E C I S I O N I have considered the parties’ written submissions on the question of apportionment of costs, and will not repeat every point made therein. Costs, and I believe including apportionment of costs, is a matter of discretion anyway. The difference between the parties lies in how much costs should be apportioned to the 1st Action (HCA 1991/2016) and the 2nd Action (HCA 3314/2016). The plaintiff is ordered to pay the defendants’ costs in the 1st Action; but only 70% of the defendants’ costs of the 2nd Action. The defendants contend that each action should account for half of their costs. The plaintiff says only 1/6 of the defendant’s costs should be apportioned to the 1st Action, based on the time estimates in the Listing Questionnaire and the actual length of trial. I do not believe the question of apportionment could be approached on an arithmetic basis, and hence I would not say that the time estimates in the Listing Questionnaire would necessarily always be a good source of guidance in apportionment. But I must say that my impression was that the 2nd Action was, by far and a long way, the more “central” matter dealt with at trial, and as the plaintiff submitted, once I had decided the 2nd Action in the way I did, as I said in Judgment §§273 and 274, the 1st Action rather simply fell away. The defendants submit that the 1st Action was maintained until the end. But that is not a very cogent reason for contending that there should be equal apportionment – it just means that the 1st Action had to be dealt with, and some costs should be attributed to it. Nor I am persuaded that the fact that the issues in the two actions are intertwined is a good reason for equal apportionment. It is true that the two actions are connected, but I must say that the parties’ (and my) attention at the trial was overwhelming more focused on the 2nd Action. Accordingly, I think it is wrong for the apportion the defendants’ costs in the way the defendants contend. I should think that, in the circumstances, 1/6 of the defendants’ costs being apportioned to the 1st Action would be a fair answer. I therefore accede to the plaintiff’s request, in §1.8(a) of their written submissions, and direct that: “The defendants’ costs in the Two Actions are apportioned as to 1/6 for HCA 1991/2016 and 5/6 for HCA 3314/2016 respectively”. Since I have wholly agreed with the plaintiff, I would order, on a nisi basis, that the costs of this application for apportionment be paid by the defendants to the plaintiff. (Bernard Man SC) Deputy High Court Judge Written Submission by Kong & Tang, for the plaintiffs (in HCA 1991/2016) and the plaintiff (in HCA 3314/2016) Written Submission by Mr Vincent Chiu, instructed by Grandall Zimmern Law Firm, for the defendants (in HCA 1991/2016) and the defendant (in HCA 3314/2016)