2006

KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

Related cases with same parties

CACV194/2002KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS
CACV58/1995KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

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61084-EN-2008-05-09

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CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM COURT OF FIRST INSTANCE HCMP NO. 2996 OF 1990)

----------------------

BETWEEN
	KWAN CHUI KWOK YING	1^st Plaintiff
	KWAN SAU HANG SUZANNA	2^nd Plaintiff
	and
	TAO WAI CHUN	1^st Defendant
	KWAN SAU SAN SUSAN	2^nd Defendant
	KWAN SAU FUN SYLVINE	3^rd Defendant
	KWAN WAI ON LAWRENCE	4^th Defendant
	KWAN LAI ON WARREN	5^th Defendant
	KWAN CHI ON	6^th Defendant
	KWAN SAU YUNG	7^th Defendant
	KWAN SAU KIN	8^th Defendant
	KWAN TONG ON JOHN	9^th Defendant
	KWAN CHEE ON also known as JOHN KUAN YANG	10^th Defendant
	KWAN YAN ON KENNETH	11^th Defendant
	KWAN YEE ON (a bankrupt)	12^th Defendant
	KWAN KWOK ON	13^th Defendant
	KWAN SAU WO WINNIE	14^th Defendant
	KWAN TIN ON DANIEL	15^th Defendant
	KWAN KIN ON NORRIS	16^th Defendant

----------------------

THIRD PARTY PROCEDINGS

BETWEEN
	KWAN CHI ON	6^th Defendant
	and
	KWAN TIT ON DANIEL	15^th Defendant

----------------------

HCMP 658/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 658 OF 2008

(ON AN INTENDED APPEAL FROM HCMP 2996 OF 1990)

----------------------

BETWEEN
	KWAN CHI ON	6^th Defendant
	and
	KWAN TIT ON DANIEL	15^th Defendant

----------------------

Before : Hon Cheung, Yeung JJA and Chung J in Court

Date of Hearing : 30 April 2008

Date of Decision : 30 April 2008

Date of Reasons for Decision and Decision on Costs : 9 May 2008

------------------------------------

REASONS FOR DECISION

----------------------------------

Hon Cheung JA (giving reasons for decision of the Court) :

1. There were two sets of proceedings before us. The first was in respect of CACV No. 296 of 2006 and the second was in respect of HCMP No. 658 of 2008.

CACV No. 296/2006

1) Leave to appeal to the Court of Final Appeal

2. In this set of proceedings the 6^th defendant applied for leave to appeal to the Court of Final Appeal against our judgment of 11 December 2007 which dismissed the 6^th defendant’s appeal against the costs order of Deputy High Court Judge To dated 30 May 2006. The dismissal was on the ground that the appeal was improperly constituted because the 6^th defendant had not obtained leave to appeal against the costs order.

3. It is clear from the judgment of the Court of Final Appeal in Peter P. F. Chan v. Hong Kong Society of Accountants [2001] 1 HKLRD 779 that the monetary criteria under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) does not encompass costs. Hence, even if the costs order in the present case exceeds $1 million, the 6^th defendant does not have a right of appeal to the Court of Final Appeal.

4. Further, in respect of discretion, the requirement that leave to appeal against a costs order must be obtained first before an appellant can lodge an appeal is well established. We cannot see there is any issue of great general or public importance involved or there is some other reason for the case to be determined by the Court of Final Appeal. We therefore refused leave.

2) Stay of execution of orders

5. The 6^th defendant also applied for a stay of execution of the following orders until the final decision on appeal :

(1) Decision dated 4 May 2007 by Judge To whereby he varied, on the plaintiff’s application, paragraphs six and seven of his costs order of 30 May 2006. The varied costs order was sealed on 11 May 2007.

(2) Decision dated 9 October 2007 by the Yeung JA who ordered the 6^th defendant to provide security for costs of his appeal and that the costs of the application be costs in the cause of the appeal.

(3) Judgment on costs dated 11 December 2007 by this Court where we ordered the 6^th defendant to pay 50% of the costs of the appeal to the 15^th defendant.

(4) Decision dated 31 January 2008 by this Court where we ordered that the $400,000 security for costs paid by the 6^th defendant is to remain in court until the final determination of the taxation of the 15^th defendant’s costs of the appeal. The money would then be paid out to the 15^th defendant in satisfaction of his taxed costs. The balance, if any, is to be paid out to the 6^th defendant.

6. We see no reason why there should be a stay of these orders now that the 6^th defendant had failed to obtain leave to appeal to the Court of Final Appeal.

HCMP 658 of 2008

1) Leave to appeal against costs order

6. There were also two applications under this set of proceeding. The first was an application by the 6^th defendant for leave to appeal against the order of Judge To dated 30 May 2006.

7. Where leave to appeal is required, a valid notice of appeal cannot be served until and unless leave to appeal has been granted (Cumbes v. Robinson [1951] 2 KB 83). This means that an intending appellant cannot stop time for serving a notice of appeal from running where leave to appeal is required by serving a notice of appeal in advance of obtaining leave. In this case although the 6^th defendant had served a notice of appeal against the decision of Judge To, clearly the notice of appeal was improperly issued. The costs decision of Judge To was sealed on 7 July 2006. The varied costs order was sealed on 11 May 2007. All this means the time for appeal against the decision of Judge To had long expired.

8. The 6^th defendant had on 5 February 2008 applied to Judge To for leave to appeal against his costs order out of time. The application was refused by Judge To on 26 March 2008.

9. Judge To had in his judgment dated 30 May 2006 provided full reasons why he ordered indemnity costs against the 6^th defendant. How a judge should award costs is a matter of discretion by him. Judge To made the costs order on the basis that, among other things, the 6^th defendant was making a false case against the 15^th defendant on documents which he knew were false.

10. We agree with the view of Judge To and see no reason why the matter should be reconsidered by this Court. Accordingly, we dismissed the 6^th defendant’s application for leave to appeal out of time against the costs order of Judge To.

11. The second was an application for a stay of execution of the costs order made by Judge To in respect of his decisions dated 30 May 2006 and 4 May 2007. Again there is no valid reason why these orders should be stayed.

Costs

12. As the 6^th defendant failed in all his applications he should bear the 15^th defendant’s costs. The 15^th defendant although appearing in person at the hearing, had previously instructed lawyers to advise him on the 6^th defendant’s applications. The costs in respect of applications under CACV 296 of 2006 is part of the costs of the appeal and the taxed costs will be paid out of the $400,000 in Court.

(Peter Cheung)
Justice of Appeal

(Wally Yeung)
Justice of Appeal

(Andrew Chung)
Judge of the Court of First Instance

The 6^th Defendant, in person, present

The 15^th Defendant (in CACV 296/2006), in person, present

59984-EN-2008-01-31

KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

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CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM COURT OF FIRST INSTANCE

HCMP NO. 2996 OF 1990)

______________________

BETWEEN

	KWAN CHUI KWOK YING	1^st Plaintiff
	KWAN SAU HANG SUZANNA	2^nd Plaintiff
	and
	TAO WAI CHUN	1^st Defendant
	KWAN SAU SAN SUSAN	2^nd Defendant
	KWAN SAU FUN SYLVINE	3^rd Defendant
	KWAN WAI ON LAWRENCE	4^th Defendant
	KWAN LAI ON WARREN	5^th Defendant
	KWAN CHI ON	6^th Defendant
	KWAN SAU YUNG	7^th Defendant
	KWAN SAU KI	8^th Defendant
	KWAN TONG ON JOHN	9^th Defendant
	KWAN CHEE ON also known as	10^th Defendant
	JOHN KUAN YANG
	KWAN YAN ON KENNETH	11^th Defendant
	KWAN YEE ON (a bankrupt)	12^th Defendant
	KWAN KWOK ON	13^th Defendant
	KWAN SAU WO WINNIE	14^th Defendant
	KWAN TIN ON DANIEL	15^th Defendant
	KWAN KIN ON NORRIS	16^th Defendant

THIRD PARTY PROCEEDINGS

BETWEEN

	KWAN CHI ON	6^th Defendant
	and
	KWAN TIT ON DANIEL	15^th Defendant

______________________

Before : Hon Cheung, Yeung JJA and Chung J in Court

Date of 15^th Defendant’s written submission : 14 January 2008

Date of 6^th Defendant’s written submission : 23 January 2008

Date of Decision : 31 January 2008

______________________

D E C I S I O N

______________________

Hon Cheung JA (giving decision of the Court) :

1. The 6^th defendant’s appeal was dismissed by this Court for lack of jurisdiction.

2. The 6^th defendant had previously pursuant to an order dated 9 October 2007 paid into Court $400,000 as security for costs of the appeal. The 15^th defendant asked for this sum to be retained pending payment out to him to satisfy his costs of the appeal when taxed.

3. The 6^th defendant opposed this and asked for the sum to be paid out to him. He submitted that as the appeal was not properly constituted because leave to appeal was not obtained the order for security should not have been made in the first place. It was therefore an invalid order and the money paid under an invalid order must be returned to him.

4. While we agree that the 15^th defendant should earlier have applied to strike out the notice of appeal instead of applying for security for costs of the appeal, the order that was made was nonetheless a valid order and should be given effect. The 6^th defendant had not appealed against that order and the time to appeal had long passed. On this basis the money in Court should and can be used to satisfy the 15^th defendant’s costs of the appeal.

5. We would order that the $400,000 is to remain in Court until the final determination of the taxation of the 15^th defendant’s costs of the appeal. It will then be paid out to the 15^th defendant in satisfaction of his taxed costs. The balance, if any, is to be paid out to the 6^th defendant.

(Peter Cheung)
Justice of Appeal

(Wally Yeung)
Justice of Appeal

(Andrew Chung)
Judge of the Court of First Instance

The 6^th defendant, in person

Messrs Huen & Partners, for the 15^th defendant

59537-EN-2007-12-17

KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

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CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM COURT OF FIRST INSTANCE HCMP NO. 2996 OF 1990)

______________________

BETWEEN

	KWAN CHUI KWOK YING	1^st Plaintiff
	KWAN SAU HANG SUZANNA	2^nd Plaintiff
	and
	TAO WAI CHUN	1^st Defendant
	KWAN SAU SAN SUSAN	2^nd Defendant
	KWAN SAU FUN SYLVINE	3^rd Defendant
	KWAN WAI ON LAWRENCE	4^th Defendant
	KWAN LAI ON WARREN	5^th Defendant
	KWAN CHI ON	6^th Defendant
	KWAN SAU YUNG	7^th Defendant
	KWAN SAU KI	8^th Defendant
	KWAN TONG ON JOHN	9^th Defendant
	KWAN CHEE ON also known as JOHN KUAN YANG	10^th Defendant
	KWAN YAN ON KENNETH	11^th Defendant
	KWAN YEE ON (a bankrupt)	12^th Defendant
	KWAN KWOK ON	13^th Defendant
	KWAN SAU WO WINNIE	14^th Defendant
	KWAN TIN ON DANIEL	15^th Defendant
	KWAN KIN ON NORRIS	16^th Defendant

THIRD PARTY PROCEEDINGS

BETWEEN:

	KWAN CHI ON	6^th Defendant
	and
	KWAN TIT ON DANIEL	15^th Defendant

______________________

Before : Hon Cheung, Yeung JJA and Chung J in Court

Date of Hearing : 11 December 2007

Date of Judgment : 11 December 2007

Date of Reasons for Judgment and Judgment on Costs : 17 December 2007

____________________________

REASONS FOR JUDGMENT

____________________________

Hon Cheung JA :

The costs orders

1. On 30 May 2006, Deputy High Court Judge To made costs orders in favour of the 15^th defendant against the 6^th defendant in respect of the Third Party Proceedings brought by the 6^th defendant against the 15^th defendant.

2. The main action was in respect of the probate of the estate of Mr. Kwan Kai Ming deceased (‘the deceased’). The 6^th and 15^th defendants are the natural sons of the deceased and their mother Madam Wong Woon Wan (‘Madam Wong’). The 6^th defendant persistently denied that the 15^th defendant is a natural son of the deceased and commenced the Third Party Proceedings against him.

3. On 30 December 1994, Patrick Chan J (as he then was) dismissed the 6^th defendant’s claim with costs (‘the 1994 trial’). However, this was reversed by the Court of Appeal and a re-trial was ordered. Judge To handled the re-trial.

4. On 4 October 2001 Judge To dismissed the 6^th defendant’s action against the 15^th defendant and granted a declaration that the 15^th defendant is the legitimate child of the deceased and Madam Wong.

5. The costs orders made by Judge To were :

(1) the costs of and occasioned by the 1994 Trial before Patrick Chan J in 1994 be paid by D6 to be taxed on an indemnity basis with certificate for two counsel, if not agreed;
(2) the costs of the appeal to the Court of Appeal in 1995 be paid by D6 to be taxed on an indemnity basis with certificate for two counsel, if not agreed;
(3) unless otherwise provided for, the costs of preparation for the re-trial from 3 November 1995 until 10 May 1999, including all costs reserved if any, be paid by D6 to be taxed on an indemnity basis, if not agreed;
(4) unless otherwise provided for, 75% of the costs of preparation for the re-trial from 11 May 1999, including all costs reserved if any and the costs of the present costs hearing be paid by D6 to be taxed on an indemnity basis, if not agreed;
(5) the costs awarded under item (1) shall be with interest from 3 January 1995; the costs awarded under item (2) shall be with interest from 3 November 1995; and the costs awarded under item (3) and such of the costs awarded under item (4) which were incurred on or before 4 October 2001 shall be with interest from 4 October 2001;
(6) 50% of the total of Dl5’s costs taxed or agreed in accordance with items (1) to (4) above not inclusive of interest be borne by and paid out of the estate of Kwan Kai Ming; and
(7) upon recovery of the costs from D6, D15 shall reimburse the estate of Kwan Kai Ming with 50% of the costs so recovered not inclusive of interest.

Judge To further ordered that, for the avoidance of doubt, Patrick Chan J’s order made on 3 January 1995 in dismissing D15’s counterclaim with costs to D6 to be taxed on party and party basis remains valid.

Leave to appeal not obtained

6. On 29 August 2006 the 6^th defendant served the Notice of Appeal in respect of the costs orders made by Judge To.

7. At the hearing of the appeal we invited the parties to deal with the preliminary point on whether the appeal was properly constituted in the first place.

8. Section 14(3)(e) of the High Court Ordinance (Cap. 4) clearly states that :

‘ No appeal shall lie ─
(e) without the leave of the court ... or of the Court of Appeal, from an order of the Court of First Instance ... relating only to costs which are by law left to the discretion of the court...’

9. The appeal was solely on costs which clearly was left to the discretion of Judge To. No leave to appeal was ever been obtained. There was no answer to section 14(3)(e). As a result the appeal was not properly constituted. We have no jurisdiction to hear the appeal and the appeal must be dismissed which we did. For a further example of the dismissal of the appeal in such a situation, see A Solicitor v. Law Society of Hong Kong [1995] 1 HKC 834 (Court of Appeal (Nazareth VP, Litton and Godfrey JJA)).

Waiver of jurisdiction?

10. The only matter that needs to be considered on this appeal is the effect of the order requiring the 6^th defendant to provide security for costs of the appeal made on the application of the 15^th defendant.

11. In Knighthood Assurance Consultants Ltd. v. Meacher (13/2/1976) Vol 120 SJ 117, the English Court of Appeal (per Lord Denning MR) held that the plaintiff who had applied for and obtained an order for security for costs of the appeal had waived the irregularity of the defendant’s failure to obtain leave to appeal.

12. The decision is, of course, not binding on us but given the decision came from Lord Denning it must be accorded with the greatest degree of respect. However, I am unable to agree to his approach. The failure to obtain leave goes towards jurisdiction : White v. Brunton [1984] 2 All ER 606 at 608 per Sir John Donaldson M R and since jurisdiction cannot be conferred by the express consent of all parties, as a matter of course, it cannot be conferred in consequence of an implied waiver by one party : see para. 59/1/46 of Hong Kong Civil Procedure 2008.

Conclusion

13. The appeal was accordingly dismissed.

Judgment on Costs

14. As the appeal was dismissed the 6^th defendant must be held liable for the costs of the appeal. However the jurisdictional point ought to have been raised by the lawyers for the 15^th defendant at an earlier stage (we note Mr. Arthur Wong, counsel for the 15^th defendant was only instructed to appear in this appeal at the end of November 2007). This is obviously a case where the 15^th defendant should have applied to strike out the notice of appeal. This was not done. The costs incurred in the striking out must be substantially less than preparing the full appeal which was listed for a two day hearing. I am of the view that the 15^th defendant is only entitled to 50% of the costs of the appeal. I will further order that unless the solicitors for the 15^th defendant informed that court within 14 days that they will not charge the 15^th defendant for the full costs of the appeal, they have to lodge a written submission to justify their claim for full costs. The Court will give directions on receiving the submission.

15. Another set of costs is those relating to the application for security for costs of the appeal which was ordered to follow the result of the appeal. I consider that this application was unnecessary and the proper order should be no order as to costs. The parties agreed to vary the costs order relating to security. The solicitors for the 15^th defendant further informed the Court that they would not charge the 15^th defendant any costs and disbursement in relation to the application for security.

Hon Yeung JA :

16. I agree with the judgment of Cheung JA and have nothing to add.

Hon Chung J :

17. I agree.

(Peter Cheung)
Justice of Appeal

(Wally Yeung)
Justice of Appeal

(Andrew Chung)
Judge of the Court of First Instance

The 6^th defendant, in person, present

Mr. Arthur Wong, instructed by Messrs Huen & Partners, for the 15^th defendant

59450-EN-2007-10-09

KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

HTML content

CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM HCMP nO. 2996 OF 1990)

_______________________

BETWEEN

	KWAN CHUI KWOK YING	1st Plaintiff
	KWAN SAU HANG SUZANNA	2nd Plaintiff
	AND
	TAO WAI CHUN	1st Defendant
	KWAN SAU SAN SUSAN	2nd Defendant
	KWAN SAU FUN SYLVINE	3rd Defendant
	KWAN WAI ON LAWERENCE	4th Defendant
	KWAN LAI ON WARREN	5th Defendant
	KWAN CHI ON	6th Defendant
	KWAN SAU YUNG	7th Defendant
	KWAN SAU KI	8th Defendant
	KWAN TONG ON JOHN	9th Defendant
	KWAN CHEE ON also known as JOHN KUAN YANG	10th Defendant
	KWAN YAN ON KENNETH	11th Defendant
	KWAN YEE ON (a bankrupt)	12th Defendant
	KWAN KWOK ON	13th Defendant
	KWAN SAU WO WINNIN	14th Defendant
	KWAN TIT ON DANIEL	15th Defendant
	KWAN KIN ON NORRIS	16th Defendant

______________________

(THIRD PARTY PROCEEDINGS)

AND BETWEEN

	KWAN CHI ON	6th Defendant
	AND
	KWAN TIT ON DANIEL	Third Party (15th Defendant)

______________________

Before : Hon Yeung JA in Chambers

Date of Hearing : 9 October 2007

Date of Decision : 9 October 2007

______________________

DECISION

______________________

1. This case concerned the estate of the late Mr Kwan Kai Ming who had two wives, two concubines and sixteen children.

2. The 2^nd plaintiff and 6^th to 15^th defendants are children of the first wife.

3. The 1^st plaintiff was the second wife who had no child.

4. The 1^st defendant was a concubine and the 2^nd to 5^th defendants are her children.

5. The 16^th defendant is the son of the other concubine who predeceased the Mr Kwan.

6. The present dispute related to the 6^th and 15^th defendants in the Third Party Proceedings only.

7. Succinctly put, the 6^th defendant sought to challenge the 15^th defendant’s legitimacy.

8. On 4 May 2007, Deputy Judge To in the High Court found that the 6^th defendant was making up a false case against the 15^th defendant on documents that he knew were false.

9. The judge concluded that viewed through the eyes of the 15^th defendant, the litigation was adverse. The judge further concluded that the 6^th defendant conducted the proceedings in a hostile, scandalous, vexatious, malicious and oppressive manner, which justified an award of costs on an indemnity basis against him.

10. The judge disqualified the 6^th defendant from having his own costs paid out of the estate of Mr Kwan. The judge further ordered the 6^th defendant to bear the costs of the 15^th defendant (in connection with a trial in 1994 before P Chan J [as he then was] and the appeal to the Court of Appeal in 1995) on an indemnity basis after discounting that part of the costs that the 15^th defendant had unreasonably incurred.

11. By a Notice of Appeal dated 29 August 2006, the 6^th defendant sought to reverse the costs orders of Deputy Judge To and to get costs against the 15^th defendants. The two-day appeal will be heard on 11-12 of December 2007.

12. On 19 September 2007, the 15^th defendant seeks security for costs of the appeal against the 6^th defendant on the basis that he will be unable to pay the 15 defendant’s costs should his appeal be unsuccessful. It is suggested that a reasonable amount for the security is $1 million.

13. The 15^th defendant contends that the 6^th defendant is in dire deficit financial state in the light of his living expenditure, after pointing out that he is now aged 73, retired with no sign of saving and is unrepresented. It is emphasized that the 6^th defendant had already incurred costs of up to $14 million.

14. The 6^th defendant denies the allegation of impecuniosity against him. He claims to have substantial investment in Chinese companies, but due to the need to keep secret, he is unable to disclose the nature and extent of his investment.

15. The 6^th defendant also alleges that the delay in applying for security is an attempt to prevent him from pursuing his appeal, as it is difficulty for him to raise $1 million within a short time. The 6^th defendant emphasizes that he should be allowed to argue his appeal in December 2007 when the whole truth will come out.

16. Order 59 rule 10(5) empowers the Court to order security for the costs of an appeal in special circumstances and it is well established that impecuniosity on the part of the appellant, without more, is a sufficient cause for ordering security for costs against him.

17. There is no dispute that the 6^th defendant has already incurred a large amount of costs that he has not yet paid. The 6^th defendant admits to have difficulties in raising money for his legal costs within a short time.

18. There is no indication that the 6^th defendant has any property or assets that the 15^th defendant can turn to for costs should the appeal by the 6^th defendant turn out to be unsuccessful.

19. The 6^th defendant’s suggestion that he has substantial investment in the Mainland, but he is unable to disclose the nature and extent of his investment is not a valid reason for not ordering him to furnish security for costs.

20. If the 6^th defendant indeed has substantial assets as he claims, an order for security of costs will not prejudice him.

21. On the information available to this court, there is a good reason to conclude that the 15^th defendant will encounter difficulties in terms of delay and expenses in enforcing any order for costs should the 6^th defendant’s appeal be unsuccessful.

22. The court has also considered the merits of the 6^th defendant’s appeal and other matters raised by him. It is neither necessary nor desirable for the court to express to strong or definite a view of the merits of the appeal, however, the court is not persuaded that there is sufficient reason not to order the 6^th defendant to furnish security for costs of the appeal.

23. Having perused the estimated bill of costs, I am of the view that a reasonable amount for the security of costs is $400,000. The issues in the appeal only concern the question of costs.

24. I order the 6^th defendant to furnish security for costs of the appeal in the sum of $400,000 by making payment into court within 28 days, failing which his appeal will be dismissed forthwith with costs to be taxed if not agreed. Until the 6^th defendant makes payment into court aforesaid, the appeal will be stayed.

25. If the 6^th defendant complies with the order of security for costs, the costs of this application will be costs in the cause of the appeal.

26. The costs of the application exclude the costs of preparing the 435 pages of bills of costs (exhibit KTOD-2 to the affirmation of the 15^th defendant dated 18 September 2007) as those documents are completely unnecessary for the disposal of the application.

(W Yeung)
Justice of Appeal

6^th Defendant: In Person.

Ms Vivian Chih instructed by Messrs Huen & Partners for the 15^th Defendant.

(1)	the costs of and occasioned by the 1994 Trial before Patrick Chan J in 1994 be paid by D6 to be taxed on an indemnity basis with certificate for two counsel, if not agreed;
(2)	the costs of the appeal to the Court of Appeal in 1995 be paid by D6 to be taxed on an indemnity basis with certificate for two counsel, if not agreed;
(3)	unless otherwise provided for, the costs of preparation for the re-trial from 3 November 1995 until 10 May 1999, including all costs reserved if any, be paid by D6 to be taxed on an indemnity basis, if not agreed;
(4)	unless otherwise provided for, 75% of the costs of preparation for the re-trial from 11 May 1999, including all costs reserved if any and the costs of the present costs hearing be paid by D6 to be taxed on an indemnity basis, if not agreed;
(5)	the costs awarded under item (1) shall be with interest from 3 January 1995; the costs awarded under item (2) shall be with interest from 3 November 1995; and the costs awarded under item (3) and such of the costs awarded under item (4) which were incurred on or before 4 October 2001 shall be with interest from 4 October 2001;
(6)	50% of the total of Dl5’s costs taxed or agreed in accordance with items (1) to (4) above not inclusive of interest be borne by and paid out of the estate of Kwan Kai Ming; and
(7)	upon recovery of the costs from D6, D15 shall reimburse the estate of Kwan Kai Ming with 50% of the costs so recovered not inclusive of interest.

‘	No appeal shall lie ─
	(e)	without the leave of the court ... or of the Court of Appeal, from an order of the Court of First Instance ... relating only to costs which are by law left to the discretion of the court...’