FAMV 38/2017 and FACV 5/2018
[2021] HKCFA 41
FAMV 38/2017
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 38 OF 2017 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 154 OF 2016)
________________
| BETWEEN | | |
| | SECURITIES AND FUTURES COMMISSION | Applicant |
| | and | |
| | YIU HOI YING CHARLES | 1st Respondent |
| | WONG NAM MARIAN | 2nd Respondent |
| | MARKET MISCONDUCT TRIBUNAL | 3rd Respondent |
AND
FACV 5/2018
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 5 OF 2018 (CIVIL)
(ON APPEAL FROM CACV NO. 154 OF 2016)
________________
| BETWEEN | | |
| | SECURITIES AND FUTURES COMMISSION
| Appellant |
| | and
| |
| | YIU HOI YING CHARLES
| 1st Respondent |
| | WONG NAM MARIAN | 2nd Respondent |
| | MARKET MISCONDUCT TRIBUNAL | 3rd Respondent |
________________
Before: Mr Acting Registrar KW Wong (in Chambers)
Date of Hearing: 25 August 2021
Dates of Submission: 8 September 2021 (by the Appellant) 9 September 2021 (by the 1st Respondent)
Date of Decision: 12 November 2021
____________________________
D E C I S I O N
____________________________
1. In the Market Misconduct Tribunal (“MMT”) and in the Court of Appeal (“CA”), it was decided that no market misconduct by way of insider dealing had been committed by the 1st Respondent (“R1”) and the 2nd Respondent (“R2”) in connection with their dealings in shares of a listed company called Asia TeleMedia Limited (“ATML’) in 2007. At all the material times, R1 was ATML’s Director of Finance and executive director, and R2 its Company Secretary. R1 made a profit of HK$5.3 million while R2 HK$5.1 million out of such dealings.
2. By the order of this Court dated 12 October 2018[1], by a majority of 4:1, those decisions were overturned on the Appellant’s appeal, with a direction that R1 and R2 be remitted back to the MMT for sanction (“Main Judgement”). The Court further directed that[2]:
“4) There be an order nisi that the 1st and 2nd Respondents [R1 and R2] pay the costs of the Appellant in this appeal, in the Court of Appeal and before the Market Misconduct Tribunal, such costs to be taxed if not agreed;
5) Should any party seek to vary the order as to costs, written submissions should be lodged with the Registrar (and served on the other parties) within 14 days of the Order, with liberty on the other parties to lodge and serve written submissions in reply within 14 days thereafter. If no written submissions are received seeking a different order as to costs before the expiry of the relevant period, the order nisi will become absolute.”
3. No submissions were received. The aforesaid costs order nisi was made absolute (“the said costs order”).
4. Pursuant to the said costs order, the Appellant as the receiving party submitted a total of 5 bills for taxation, 4 of which under the reference of FACV 5/2018 and the other under FAMV 38/2017. They are (first four bill nos. assigned by the Court’s Registry and no. 5 by me):
| FACV 5/2018 |
| i) | Bill No. 1 - relating to costs of appeal in this Court; |
| ii) | Bill No. 2 - relating to costs of appeal in the CA and leave to appeal to this Court before the CA; |
| iii) | Bill No. 3 - relating to costs in the MMT; |
| iv) | Bill No. 4 - relating to costs of leave to appeal to the CA; |
| FAMV 38/2017 |
| v) | Bill No. 5[3] - relating to costs of leave to appeal in this Court. |
5. R1 and R2 are separately represented. R1 filed 5 lists of objection, all dated 21 October 2020 each in response to a corresponding bill. The grounds of objection include, inter alia, undue delay in taking out the taxation and interest deduction as a result of the delay. None was filed by R2.
The Applications
6. On 24 February 2021, R1 took out 5 separate summonses, each in respect of a bill, seeking to amend the 5 lists of objection by introducing a preliminary argument, namely, R1 and R2 are not jointly and severally liable for the costs arising from the said costs order. By the proposed amendments, R1 proposes the appropriate liability of R1 and R2 should be that each is to bear 50% of the Appellant’s costs incurred.
7. In support of apportionment proposition, R1 relies on the decision of DHCJ Ashley Burns SC in Lam Sik Shi v Lam Sik Ying and Another[4]. It was decided that if a costs order is silent as to whether the liability for costs is joint and several, the taxing master has a discretion to apportion the costs between the paying parties based on the facts of the case.
8. Prior to R1 taking out the said application, by a letter dated 19 January 2021 from Raymond Chan, Solicitors, R2 stated that she was neutral and has no application of her own, and would make no submission to the Court. R2 took the same position at the subsequent call-over hearing.
9. Initially, the parties sought directions from the Court on the meaning of the said costs order. It was later decided that the Registrar should deal with the issue, and hence this hearing. The Appellant and R1 were represented by counsel. R2 did not attend the hearing.
10. The primary contention of the Appellant is that in a case where the order for costs is against more than one paying parties and is silent on the question of apportionment, in the absence of special circumstances[5], the paying parties should be jointly and severally liable for the receiving party’s costs.
The Issues and Discussion
11. The amendments sought by R1 raises, in effect, a preliminary issue as to the meaning and effect of a costs order, i.e. when a court is silent in respect of the liability under a costs order against 2 or more paying parties, whether as a matter of law it should be a joint and several liability order and whether the taxing master has a discretion to apportion according to the facts of the case.
12. R1’s original position seems to be that only the judge who made the costs order has power to order joint and several liability costs order. In the absence of such express order, a taxing master should apportion. It was unclear then as to whether R1 was asserting, therefore, the said costs order was not joint and several.
13. R1’s position is clearer after Mr Samuel Wong of counsel has been instructed. After reading his submission as a whole, R1 is not asserting that in the absence of an express joint and several liability order, a taxing master must apportion. It is submitted on R1’s behalf that, in the particular circumstances of this case, it will be fair for the taxing master to apportion, and that is not prohibited as a matter of law. The extent of apportionment proposed is an equal split of the Appellant’s costs between R1 and R2. In order words, R1 asked that each R is to be severally liable to the extent of 50%.
14. After a reading of Mr Norman Nip, SC’s submissions made on the Appellant’s behalf, he also does not in fact drive at a proposition that as a matter of law, such order should be a joint and several order and the taxing master has no power to apportion. What is submitted is that in the circumstances of this case, the costs liability should be joint and several: see also [19] and [20] below.
15. Apparently, it is parties’ common ground that the taxing authority has the power on whether or not to apportion. It is how such power is to be exercised in a given circumstance that the parties fall apart. A good starting point is, perhaps, to examine the decision of Stumm v Dixon & Co and Knight[6]. This is an authority relied on by the receiving party in Lam Sik Shi in support of a joint and several liability construction[7], and Lam Sik Shi is relied upon by R1 in the present application. Although the argument was not successful before DHCJ Burns SC, the learned Deputy Judge did not disapprove Stumm. Quite the contrary, the Deputy Judge cited with approval other passages of Stumm at [28][8] of his decision to explain a proposition that when a judgment is for the plaintiff with costs, it means a defendant is to pay only all costs caused to the plaintiff by the act of the defendant, not those caused not by that defendant.
16. Stumm concerned an action by the plaintiff against 2 defendants. Initially the 2 defendants pleaded jointly and made payment into court. It was not accepted. Dixon & Co as one of the defendants amended the pleadings, ran an alternative defence of denying any liability while the defence of the other defendant remained unaltered. Judgment was eventually entered against both beyond the payment into court, with costs. Question arose as to whether the other defendant should be liable for costs incurred by the plaintiff to meet the alternative defence run by Dixon & Co. The Divisional Court and the Court of Appeal (with Fry LJ dissenting) affirmed the Master’s decision that it was Dixon & Co alone who was to be liable for that part of the plaintiff’s costs.
17. In Stumm, Lord Esher M.R. after stating it would be against natural justice to hold a defendant liable to a plaintiff for costs not caused by him, continued as follow at p.533-534 and laid down a rule:
“… In my opinion the true rule is this: When an action is tried against two or more defendants, and any defendant separates in his defence, and the judgment is against all, the law is that each of them is liable for the damages awarded by the judgement, and each of them is liable to the plaintiff for all costs taxed on his behalf as properly incurred by him in the maintenance of his action, except as to costs caused to him by so much of the separate defence of any defendant as is, and can only be, a defence for that defendant as distinguished from other defendants. With regard to such costs so caused to the plaintiff, he is entitled by law to recover them against that defendant alone who has so caused him to incur them.” (Emphasis added)
18. In my view, the above does not support a proposition that whenever a court makes a costs order against several defendants, the liability among the paying parties under it must be joint and several. What can be derived is that in cases involving more than one defendant who all lost in a claim with judgment and costs entered against all of them, the liability for costs can be regarded as, generally, joint and several except when a defendant raised a separate defence of his own, and in that case, that defendant will be solely liable for the plaintiff’s additional costs in meeting that separate defence. In other words, circumstances of the case need be looked at even when the costs order is silent on the extent of liability of the paying parties.
19. It is fair to say that according to Mr Nip SC, he did not seek to elevate such “joint and several” liability rule to the level of a hard and binding rule or the status of a legal principle. Neither is he driving at a case that the taxing master has no discretion, when faced with an order couched in the way as the said costs order did, to apportion. He is submitting that a “joint and several” liability order is the “general rule”. It can be departed from if special circumstances can be shown[9], but such special circumstances are simply absent in the present case. Thus there is no justification for a departure from the general rule.
20. In his written submission, Mr Nip SC relied on the Australian decision of Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd[10]. It was a decision in which 2 defendants were ordered to pay the plaintiff’s costs. Again the order was silent as to whether there should be apportionment. One of the defendants submitted the costs should be apportioned but the plaintiff opposed. Young J refused apportionment and referred the “joint and several” liability as a normal rule. He had the following to say in the Supreme Court of New South Wales of Australia:
“Ordinarily, orders for costs against two or more defendants are both joint and several, … The court may make an order for costs to some other effect, but it will usually only do so if there is some special circumstances shown, … It ordinarily will not do so if the defendants can in a practical sense be considered “partners in crime”. The reason for this is that if one defendant should, for instance, become insolvent it is a more just solution that the other defendant should pay the costs, rather than the loss fall on the successful party: ….
There are two examples, at least, in the authorities where separate orders have been made. In Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127 at 138, one defendant did not put on a defence and there was judgment, the other went for trial and lost. It was held that there should be a special order as to costs so that the taxing officer would certify how much of the costs was properly attributable to the defendants jointly and what to each separately and several orders should be made.
In Stumm v Dixon and Co (1889) 22 QBD 529 at 533-534 Lord Esher MR said that where defendants put in separate defences and different issues were tried and different amounts of time were taken in respect of the various issues it may be appropriate to depart from the general rule.
…
It does not seem to me to be a case where the evidence fell into compartments or where the parties were truly divorced one from another. The whole of the factual and legal situation was co-mixed and although “partners in crime” is an unfair epithet, the parties were partners in unconscionability.
Accordingly, it seems to me that as between the plaintiff and the defendants the normal rule should apply and the plaintiff is entitled to an order for costs against both the third and fifth defendants.” (Emphasis added)
21. After hearing submissions at the hearing on 25 August 2021, I asked the parties to do further research on the applicability of Stumm in Hong Kong and England. Both counsel are very helpful and have submitted a list of local and English decisions (with brief further submissions) in which Stumm was discussed. It is unnecessary for me to go through each of them here because some of them are with very different facts rendering them immediately distinguishable[11]. Suffice for me to discuss a few of them in the following paragraphs.
22. Hobson v Sir W.C. Leng & Co[12] was an action of libel against 2 defendants. D1 admitted liability and pleaded an apology while D2 defended and pleaded justification. Both Ds were found liable by the jury after trial. Judgment was entered for the plaintiffs with costs (silent as to whether jointly and/or severally) to be taxed. No apportionment was made by the taxing Master. On appeal it was decided that D2 who had pleaded justification was alone liable for costs occasioned to the Ps by and in consequence of that plea. The decision was upheld on appeal to the Court of Appeal. Buckley LJ considered the court would be assisted, though was not bound by the conflicting decision in Stumm and it was open to them to re-consider the question. It was said by the learned judge (at p.1249) as follows:
“In the present case I entertain no doubt that it would be right that the plaintiff should not have the costs of the issue of justification against the defendant who had not pleaded that issue, …”
23. Tamglass Ltd v Luoyang North Glass Technology Co. Ltd and Novaglaze Limited[13] is a case in which the “general rule”, i.e. joint and several costs liability was considered applicable. In this case D1 challenged the validity of the claimant’s patent while D2’s position, as pleaded, was a simple denial. The claimant succeeded against both Ds after trial. D2 argued that since it did not take part in the fight and had said it would abide by the court’s decision, it should not be liable for the claimant’s costs of the trial. Mann J applied the “general rule” because D2 could be regarded as a real and justifiable defendant. Further, D2 chose to wait to see with a view to benefiting by continuing operating the infringing machine until judgment when D1 was actively fighting the invalidity issue. D2 was considered unable to shift the burden after the claimant had established a prima facie case of applying the general rule.
24. Bairstow v Queens Moat Houses Plc[14] concerned the pursuit of false claims by different claimants acting through different firm of solicitors against the same defendant in a concerted manner. They were ordered to pay the common costs of the actions (though not consolidated) jointly and severally. Nelson J distinguished Stumm on the basis of separate actions, though heard together.
25. However, in my view His Lordship was apparently applying the same principle to a reverse Stumm situation, i.e. instead of a claimant pursing a number of defendants, it was several claimants suing a single defendant and lost. His Lordship ruled that claimants who actively supported the other claimants in a coordinated manner, giving untrue evidence and advancing false claims were in effect combining together in presenting their claim. They should be jointly and severally responsible for the costs incurred by the opposite party in resisting all these claims as opposed to those costs which are referable solely to their own[15]. In coming to that conclusion, the learned judge was in fact exercising a wide and complete discretion on costs[16].
26. In Mustafa & 2 Others v Sir Ian Collett & 2 Others[17], 3 claimants brought a libel action against 3 defendants. Question arose as to whether the 3 claimants should be liable to one of the defendants’ costs jointly and severally after the time limited for acceptance of the settlement offered by that defendant. Warby J held they should because the claimants pressed on with their common case despite the settlement offers[18].
27. Dufoo v Tolaini and Others[19] is a case of reverse Stumm situation. Three claimants advanced the same case against the defendant. Shortly before trial, two claimants settled with the defendant. The remaining claimant, apparently falling out with the others, amended his claim to contradict the others’ cases and proceeded to trial, and lost. That losing claimant was asked by the trial judge to pay solely the costs of the defendant. He disagreed, appealed and sought sharing of costs from the other 2 claimants who had settled.
28. Jackson LJ reversed (The Chancellor of the High Court and Gloster LJ agreeing) the costs decision and directed the 2 settling claimants to share with the losing claimant the costs of the defendant up to the time when they filed different amended pleadings showing that they were no longer consistent and mutually supportive. Stumm was relied on by the claimant seeking contribution. Jackson LJ commented at [58]:
“When different parties advance the same unsuccessful case against their common adversary, the normal starting point for a court considering costs is that they should all contribute to the recoverable costs of the successful party. The judgment of Lord Esher MR in Stumm, … is merely an illustration of that proposition. I would not dignify that proposition with the label of legal principle. It is merely a sensible way of applying what is now CPR44.2(2)[20] in the general run of multi-party cases. The special rules governing group actions, … do not detract from that observation.” (Emphasis Added)
29. Kwan Yu Biu v Nip Hung On and Others[21] was a local decision on review of taxation. It was a fatal accident case in which P obtained default judgment against D1 and D2, and judgment after trial against D3. The costs order was silent as to sharing of liability. Stumm was referred to the Master who ruled that D3 was also liable to pay costs incurred by P in obtaining default judgment against D1 and D2 as well.
30. Mr Samuel Wong has fairly referred me to the English decision of Kelly’s Directories Limited v Gavin and Lloyds[22] in which the Ps sued D1 and D2 for infringement of copyright. After trial, Ps were successful to obtain injunction against D1 but not D2. No costs order was made between Ps and D2. However, the form of order drawn up by Ps vis-à-vis D1 was that D1 was to pay Ps’ costs of the action. The taxing master allowed costs to include those incurred by Ps against D2. On appeal before Byrne J, it was held that it was too late to raise the objection, as it should have been raised either at the conclusion of trial or when the order was drawn up.
31. Erwiana Sulistyaningsih v Tsui Yun Bun Barry and Law Wan Tung[23] is a recent local decision on the subject not mentioned by both parties. In this case P sought to set aside a conveyance of landed property from D2 to D1. Shortly before trial, D1 had indicated that he would withdraw his defence, taking a neutral stance, and would not take part in the trial with a view to saving costs, and to abide by the decision of the court. However, D1 did not admit liability because he wanted to preserve a position that in case P failed, he was still the sole beneficial owner. The trial went ahead against D2 only. Mr Recorder Stewart Wong SC, after setting aside the conveyance, ordered D1 to be also liable to P’s costs jointly and severally with D2 upon P’s application. One of the reasons for so holding was that D1 was found to have shared the common intention for the fraudulent transfer, should be liable for P’s need to pursue after both Ds until judgment.
32. Having gone through the above, the following guidelines can be derived for determining whether a paying party’s liability under a costs order is joint and/or several or whether it can be apportioned when the costs order is against more than one paying party and is silent on the parties’ liabilities:
i) It is incorrect to say that only the judge making the said costs order can direct whether or not it being a joint and several liability order. The taxing master seized of the matter also has the power to interpret the order and make such determination, and in appropriate circumstances, to apportion and decide on the extent of apportionment. For example, inLam Sik Shi, Stumm, and Kwan Yu Biu, the taxing master did deal with the question of apportionment when it was before him. See also CIBC Mellon[24] in which the taxing judge refused to hold the costs order being joint and several in the circumstances of that case. The refusal was upheld on appeal. The learned author of Friston on Costs (3rd ed, 2018) Oxford University Press, also takes similar views: see paras 19.14-19.15[25]. The case of Kelly’s Directories is out of line with at least the English Court of Appeal decision of Stumm and is not followed;
ii) the general rule is that the liability to pay the winning party’s costs under such order should be joint and several, except in respect the separate case/cause raised by one of the losing parties, and in that case, that losing party alone is solely liable for the costs incurred by the winning party in meeting the separate case/cause, see: Stumm, Mike Gaffikin and Dufoo;
iii) the general rule referred to in para (ii) above is a starting point only and is not be elevated to the status of a hard and fast legal principle: seeDufoo[26]. It is an application of a more general principle of costs, namely, it being a discretion of the court taking into consideration of all circumstances including, inter alia, who is the winner and the parties’ conduct. The Hong Kong costs regime also provides for the same governing principles, see: O.62 r.3 & r.5 RHC, Cap 4A. The requirement of justice and fairness should always dictate the exercise of discretion, see: Stumm and Dufoo. The general rule, i.e. the joint and several liabilities of the parties is no more than a summary of the general observation of how the court normally exercises its discretion on costs when 2 or more parties run a “common” cause or defence against their adversary and fail; and
iv) When considering whether the “starting point” is established or the special circumstances shown, what is important is whether the losing parties are pursuing a common cause/defence/case or raising separate issues independent of each other. The facts that the losing parties are separately represented, or that their cases were not consolidated, or that one is less active than the others (as in the case of Tamglass andErwiana) are not determinative in deciding whether special circumstances or exception have been shown. Parties are to be held jointly and severally liable for the costs of their adversary if they have acted in a coordinated and concerted manner, or each supporting each other’s case until they are no longer mutually supportive, e.g. Bairstow, Dufoo; or when they press on their common cases despite raising different grounds, e.g. Mustafa; or they being real and justifiable (as against nominal) defendants but seeks to obtain benefit from the active resistance of the other defendant, though itself less active and even willing to abide by any judgment of the court, e.g. Tamglass andErwiana. Parties are not so held liable when one party raises a separate cause/defence of his own that can be distinguished from the others, e.g. Stumm, Dufoo; or when the parties are truly divorced one from another or evidence falling into real compartments, e.g. Mike Gaffikin.
Applying the Above Guidelines
33. Before applying the above guidelines to the present case, the brief background and issues ventilated in each level of courts have to be briefly gone through. [11] to [33] of the Main Judgment contain an excellent summary of the proceedings below and the background against which R1 and R2 were alleged to have committed market misconduct. I would highlight the following which are relevant for the purpose of the decision:
i) The Appellant identified 4 suspects (including R1 and R2) who possessed market sensitive information and had engaged in insiders’ trading of shares in ATML in 2007 with a view to gaining profit or avoiding loss. Notice of inquiry by the MMT was issued in January 2014. The MMT Inquiry started in December 2014;
ii) Before the MMT, R1 and R2 were separately represented. R2 and another suspect who was also found by the MMT not culpable and against whom no appeal was lodged were represented by the same firm of solicitors. Each of R1 and R2 gave his/her own evidence setting out his/her own personal circumstances and explanation for dealing with the shares with a view to establishing his/her own grounds of defence. R1 and R2 were found to be prima facie involved in market misconduct. They both relied on the same so-called “innocent purpose defence” under s.271(3) of the Securities and Futures Ordinance, Cap 571 (“SFO”). They attempted to demonstrate that in the special circumstances of the company, the debt due to the only creditor would somehow be settled “behind closed door” and that they were making use of a “once-in-a-life-time” opportunity. The MMT found, based on its own construction of s.271(3)[27] and the evidence of R1 and R2, that they had each independently established a defence of “innocent purpose” pursuant to s.271(3) of the SFO[28];
iii) In the CA, R1 and R2 were again separately represented. The arguments centred around the challenges launched by the Appellant, essentially, on (i) what was the meaning of “use” of price sensitive information, and whether “withholding” of such information so that the speculation bubble could be maintained amounted to such use; and (ii) some findings of facts by the MMT[29]; and
iv) Before the Appeal Committee and this Court, R1 and R2 remained separately represented. The Appeal Committee certified a number of questions of law when granting leave to appeal. The Full Court identified the central question in this Appeal boiled down to the meaning of “by using relevant information” in s.271(3) of the SFO[30].
34. According to the authorities discussed, though R1 and R2 each raised individually different factual matters required to substantiate their own defence, they were facing the same charge and case from the Appellant and essentially, they were running the same defence in fighting. They derived mutual support and benefit from making the common defence. By applying Stumm, R1 and R2 should, prima facie, be responsible for the Appellant’s costs jointly and severally.
35. However, I consider that the costs arose out of the MMT proceedings deserve further consideration.
36. All MMT proceedings are inquisitorial in nature. The present inquiry initiated by the Appellant is akin to 4 prosecutions taken out against 4 different individuals all heard in one set of MMT proceedings. Each of R1 and R2 raised his/her own factual circumstances and framed them under the common umbrella of “innocent purpose defence”.
37. Further, as gleaned from the MMT report (including the part on sanction), there is no evidence suggesting R1 and R2 were acting in concert in the insider dealings. Neither was it the suggestion, nor finding, of the MMT that there was an overall scheme whereby R1 and R2 (or even other suspects) each playing a role in it and each getting a profit. It was also not the finding of the MMT that they conspired, or were in joint enterprise with a view to making use or withholding disclosure of the confidential information.
38. As set out above, fairness should dictate the payment of costs under a costs order. It is noted:
i) there are items of work which were incurred by the Appellant for pursuing its cases in the MMT against all respondents, e.g. costs of appointing the experts. These costs are common costs and have to be incurred anyway no matter whether any of R1 and R2 alone or both were pursued. There is no good ground to apportion these common costs between R1 and R2;
ii) some pieces of work comprise common costs as well as unique costs in meeting the cases of individual Rs, e.g., counsel fees. The legal issues raised by Rs were considered the same by the MMT[31]. Thus the Appellant’s costs in addressing these issues are obviously common costs. There is no reason for them to be apportioned. However, the length of the inquiry before the MMT would necessarily be shorter had it been against only one of them. Counsel’s fee would be less if only one of them was pursued. The costs for dealing with the factual evidence or some issues that are unique to R2 should not be borne by R1 and vice versa. For work of this nature, it will be fair to do an apportionment; and
iii) there are costs that can be solely attributable to the case raised by R1 or R2, e.g. communication with the solicitors of either R1 or R2 on matter relating exclusively to their respective clients. In that case, R1 should not be liable for the costs incurred by the Appellant in dealing with R2.
39. I am prepared to adopt the approach in the preceding paragraph in dealing with Bill no.3. Upon a perusal of that bill, there are quite a lot of costs items which involved common costs (be it wholly or partly) in respect of which R1 and R2 are both jointly and severally liable. The question of whether to apportion, and if so how much, depend on the items to be examined. That will be done at the adjourned taxation when individual items of the bill are taxed, unless the parties can come to a prior agreement on them.
40. However, the situation in the CA and in the CFA is, in my judgment, crystal clear. As said in [33] above, the arguments there centred mainly on legal principles, and in particular, whether or not the statutory defence under s.271(3) of the SFO can be made out. Though the parties are separately represented, it is obvious that in the CA and in this Court, there is no issue that is unique to a party which requires separate adjudication.
41. In the CA, the Appellant advanced the same 2 broad grounds against both Rs[32], the first being a legal question on the meaning of the phrase “by using relevant information” and the second being factual challenges. Both R1 and R2 raised similar counter arguments. They supported each other and naturally, one would benefit to the same extent if the other succeeded, see: [46] to [60] of the CA’s judgment. The CA simply dealt with them together[33]. As regards the factual finding challenge, I think minimal costs had been incurred. It is because the CA found it quite impossible to succeed on this ground because according to settled legal principles, when a specialised tribunal had found the Rs’ evidence credible with sound reasons, the court simply would not interfere. Very little has been ventilated by the parties, as can be seen in the CA decision.
42. When the matters went to the leave to appeal stage (in the CA and this Court) and at the substantive appeal before this Court, again, both R1 and R2 faced the same legal questions of great general or public importance framed by the Appellant and this Court. There is no question that is unique to any one of the Rs. One single Case and one Supplemental Case were filed by the Appellant against both Rs. The successful challenge by one R on these questions would definitely benefit the others. They now failed for the same reasons. The fact that they are represented by different firms of solicitors is, as stated above, not a material consideration, not to mention a determinative one. The general rule has been established and special circumstances not shown. In my judgment, there is no good reason to depart from the general rule. Both R1 and R2 should be jointly and severally liable under the said order.
Dispositions
43. R1’s application to apportion by splitting the Appellant’s costs fails. The amendments sought by R1 to the list of objection are not allowed, save and except to the limited extent regarding Bill No. 3 as more particularly set out in [38] and [39] above.
44. There is no reason that the usual rule of costs to follow the event not to apply. I make an order nisi that R1 do pay the Appellant’s costs of the preliminary issue, together with certificate for counsel, and there be no order as to costs between the Appellant and R2, such order nisi to become absolute in 14 days if no application is made to vary it. The parties are free to submit whether such costs be disposed of by way of summary assessment or taxation. A decision will be made on the papers unless otherwise directed.
| | (King Wah WONG) |
| | Acting Registrar, Court of Final Appeal |
Mr Norman Nip SC, instructed by Securities and Futures Commission, for the Appellant
Mr Samuel Wong, instructed by Sit, Fung, Kwong & Shum, for the 1st Respondent (R1)
Miss Wong Nam Marian (R2) acting in person since 22 June 2021, absent
[1] Securities and Futures Commission v Yiu Hoi Ying Charles and Others[2018] HKCFA 44; (2018) 21 HKCFAR 475
[2] Per [4] and [5] of the sealed order
[3] The Registry has assigned Bill no. 1 under FAMV 38/2017 for this bill. However, in order to avoid confusion, it would be better and easier (for identification purpose) to refer this bill as Bill no.5
[4] [2020] HKCFI 2978; (unrep) HCA 1605/2004, 27/11/2020, DHCJ Burns SC
[5] See [8] of the joint letter of the Appellant and R1 dated 15 March 2021
[6] (1889) 22 QBD 529
[7] See [26] of Lam Sik Shi when the paying party relied on a passage of Stumm at p.533-534
[8] The learned DHCJ relied on another passage of Stummat 532-533
[9] See [46] of his written submission dated 17 June 2021
[10] (unrep., NSW Sup Ct, 15/7/1996); 1996 WL 34299119
[11] e.g. (i) in CIBC Mellon Trust v Mora Hotel Corporation [2003] 3 Costs LR 334, Davis J upheld the taxing judge’s refusal to hold 2 defendants jointly and severally liable for one set of costs which comprised costs incurred prior to one of the defendants being joined; (ii) Rowe v Ingenious Media Holdings [2020] EWHC 235 (Ch) was a claim by multi-group claimants who were unconnected and with claims varied substantially. Nugee J apparently placed more emphasis on the starting point, namely, costs were in the discretion of the court.
[12] [1914] 3 K.B. 1245
[13] [2006] EWHC 443 (Ch); [2006] FSR 33
[14] [2011] CP Rep 59
[15] See [30] of Bairstow
[16] See [21] of Bairstow
[17] [2014] EWHC 4117 (QB)
[18] [66] and [70] of Mustafa
[19] [2014] 6 Costs LR 1106
[20] The relevant part of CPR44.2(2)-(4), as repeated in [38] of Dufoo is:
“(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order. …
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer which costs consequences under Part 36 apply.”
Similar Hong Kong provisions relating to costs can be found in O.62 r3 (in particular, r.3(2)) and r.5 RHC, Cap 4A
[21] (unrep) HCA 844/1969, 5 Jun 1971, Master Jones
[22] [1901] 2 Ch 763
[23] [2018] HKCFI 463
[24] See footnote 11
[25] [19.14] That was more than a century ago. In more recent times, Davis J found that the judgment of Lord Esher should be preferred and that, over the years, it has become generally accepted that Fry LJ’s judgment was the dissenting judgment. (footnote: CIBC Mellon Trust Co v Mora Hotel Corpn NV [2003] EWHC 9037 (Costs)) Thus, where a single costs order is made against two defendants who each defended the claim separately, the costs judge has the power to interpret an order that the claimant’s costs should apply severally to each defendant in relation to the costs of the claimant’s own defence. [19.15] Each entitling order ought to be interpreted individually. There are certain aids to interpretation that may be relevant, but they offer only limited assistance and are rarely determinative. General trends can be identified (some of which relate to agreements rather than costs orders, but the principles are broadly the same, especially where an order has been made by consent). They are set out below (19.16 – 19.20). [Emphasis added]
[26] See [28] above
[27] The Rs contended “using relevant information” under s.271(3) must mean something other than mere possession or knowledge of the relevant information whereas the SFC’s case was that “using relevant information” simply meant dealing in the listed securities when in possession of the undisclosed price sensitive information which he knows, if disclosed, would be likely to affect the share price: see [46] & [47] of Main Judgment
[28] See [8] of The report of The Market Misconduct Tribunal into dealings in the shares of Asia Telemedia Limited
[29] See [92] to [100] of the Main Judgment
[30] See [45] and [46] of the Main Judgment
[31] See [196] of the MMT Report wherein the MMT framed 3 questions to be answered in the Inquiry
[32] See [35] to [37] of the CA judgment
[33] Examples can be found in the CA’s decision at [46]: “I agree with Mr Russell Coleman, SC (… for Charles) and Mr Laurence Li (for Marian) that …”; [47]: “I agree with their submission that …”; and [52]: the suggestion made on appeal that Charles and Marian had knowingly and directly contributed to … I do not agree with Mr Wong …. I agree with Mr Coleman and Mr Li …”