LAM PO YEE v. YU SHUI MUI

HCA 2092/2024

[2025] HKCFI 4245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2092 OF 2024

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REASONS FOR DECISION

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INTRODUCTION

1.  On 25 February 2025, the Plaintiff in this action took out a summons to stay its own action against the Defendant (the “Stay Summons”). Having heard the parties’ submissions, I dismissed the Stay Summons with an indemnity costs order and grossly assessed the same at HK$200,000. Now I give my reasons.

MATERIAL FACTS

2.  The material facts of the present case are conveniently and helpfully set out in Sections C-E of Mr Justice K Yeung’s decision dated 14 July 2025 in Lam Po Yee v Yu Shui Mui (余水梅)[2025] HKCFI 2734.

3.  On 18 October 2024, the Plaintiff commenced the present proceedings by issuing a generally endorsed writ of summons (the “Writ of Summons”).

4.  This Court had previously dismissed the Plaintiff’s application for an interim injunction against the Defendant.

5.  The Plaintiff then applies to this Court to stay her own action pending an arbitration to be commenced by her. Fundamentally, I am of the view that the Plaintiff must make up her mind as to whether, in relation to her claims against the Defendant, she wants to proceed by way of an arbitration or to prosecute the present High Court proceedings. Judicial resources are limited. If the Plaintiff would like to proceed by way of an arbitration, she could well withdraw the present High Court proceedings. This Court needs persuasion and good reasons to allow the Plaintiff to first commence the present High Court proceedings and then to proceed to an arbitration.

6.  Mr Lim for the Plaintiff was not able to give any satisfactory answer as to what additional benefit the Plaintiff can achieve by maintaining the present High Court proceedings whilst proceeding with an arbitration against the Defendant.

7.  If it is thought that the present High Court proceedings can be kept alive so that the Plaintiff can use that as a platform to apply for specific discovery of documents, I am of the view that that is an abuse of the process of the Court. The Plaintiff could apply for discovery of documents as well in her intended arbitration proceedings.

8.  I am informed that at the call-over hearing, Madam Justice Mimmie Chan also observed that the Plaintiff should consider if the matters in dispute should be resolved by arbitration, the Plaintiff could simply withdraw the present action.

9.  Mr Siu for the Defendant pointed out that the Plaintiff alleged that the Defendant was a gamer in the mobile game 三國志（戰略版) (the “Mobile Game”) who made defamatory statements in relation to the Plaintiff. The Plaintiff states in the Writ of Summons that her claim is “Torts”, but nonetheless claims that the dispute should be referred to arbitration pursuant to service agreement allegedly entered into between the Defendant and the service provider of the Mobile Game, i.e. Qookka (the “Service Agreement”). The Plaintiff is not a party to the Service Agreement.

LEGAL PRINCIPLES

10.  Section 20 of the Arbitration Ordinance (Cap. 609) provides that:

“Article 8 of the UNCITRAL Model Law, the text of which is set out below, has effect—

“(1) Article 8. Arbitration agreement and substantive claim before court

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”.” (Emphasis added.)

11.  In determining whether to grant the stay, it is also necessary to satisfy the following questions:

(1)  Is there an arbitration agreement between the parties; (“Condition 1”)

(2)  Is the clause in question capable of being performed; (“Condition 2”)

(3)  Is there in reality a dispute or difference between the parties; (“Condition 3”)

(4)  Is the dispute or difference between the parties within the ambit of the arbitration agreement. (“Condition 4”)

See: Polytec Overseas Ltd And Another v Grand Dragon International Holdings Co Ltd And Others [2017] 3 HKLRD 258 at §23.

ANALYSIS AND DETERMINATION

12.  I agree that for the Contract (Rights of Third Party) Ordinance (Cap. 623) (the “Ordinance”) to be engaged, the Plaintiff must first show that there is an agreement between the Defendant and the service provider, namely, Qookka; and the agreement contains an arbitration clause.

13.  The Plaintiff submitted that as she had entered into an agreement with Qookka, therefore the Defendant must also have entered into an agreement with Qookka, and such agreement must have contained an arbitration clause. I agree with Mr Siu that the Plaintiff failed to discharge her burden of proof in establishing this fact. First, the Plaintiff is not able to produce the agreement between Qookka and herself. She was only able to produce various “printouts” obtained from Qookka. Secondly, there are at least three different versions of the Service Agreement some of which do not contain any arbitration clause.

14.  Secondly, as a matter of law, even assuming that there is an arbitration agreement between the Defendant and Qookka, the Plaintiff is not entitled to rely on the Ordinance. To begin with, the Plaintiff is not a party to the Service Agreement between the Defendant and Qookka.

15.  Sections 4 and 12 of the Ordinance provide:

“4. Third party’s right to enforce contractual term

(1) A third party may enforce a term of a contract (including a term that excludes or limits liability) if—

(a) the contract expressly provides that the third party may do so; or

(b) the term purports to confer a benefit on the third party.

(2) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description.

(3) Subsection (1)(b) does not apply if, on a proper construction of the contract, the term is not intended to be enforceable by the third party.

(4) The enforcement of the term by a third party under this section is subject to any other term of the contract relevant to the term.

…

12. Arbitration agreement

(1) Subsection (2) applies if a third party’s right to enforce a term of a contract under section 4 is subject to an arbitration agreement.

(2) As regards a dispute between the third party and the promisor relating to the enforcement of the term by the third party, the third party is treated as a party to the arbitration agreement for the purposes of the Arbitration Ordinance (Cap. 609).

(3) Subsection (2) does not apply if, on a proper construction of the contract, the third party is not intended to be so treated.

(4) Subsections (5) and (6) apply if—

(a) a third party may enforce a term of a contract under section 4;

(b) the term—

(i) provides that one or more descriptions of dispute between the third party and the promisor is to be submitted to arbitration; and

(ii) constitutes an arbitration agreement; and

(c) subsection (2) does not apply in relation to the arbitration agreement.

(5) If the third party enforces the arbitration agreement under section 4, then, as regards the dispute for which the arbitration agreement is enforced, the third party is treated as a party to the arbitration agreement for the purposes of the Arbitration Ordinance (Cap. 609).

(6) The third party is so treated immediately before the third party exercises the right to enforce the arbitration agreement under section 4.” (Emphasis added.)

16.  To avail oneself the benefit of the Ordinance, it is necessary to show that:

(1)  The claim falls within either sections 4(1)(a) or 4(1)(b), both of which are qualified by sections 4(2) and 4(4). If it is a case of section 4(1)(b), it is further qualified by section 4(3);

(2)  Once the above can be satisfied, sections 12(1) and 12(2) would prima facie come into play, subject to the qualification of section 12(3).

17.  Specifically in relation to the phrase “the term purports to confer a benefit on the third party” in section 4(1)(b) of the Ordinance, it was held in Dolphin Maritime & Aviation Services Ltd v Sveriges Angfartygs Assurans Forening [2010] 1 All ER (Comm) 473 at §74 that:

“A contract does not purport to confer a benefit on a third party simply because the position of that third party will be improved if the contract is performed. The reference in the section to the term purporting to ‘confer’ a benefit seems to me to connote that the language used by the parties shows that one of the purposes of their bargain (rather than one of its incidental effects if performed) was to benefit the third party.” (Emphasis added.)

18.  Similarly, in San Evans Maritime Inc v Aigaion Insurance Co Sa [2014] 2 Lloyd’s Rep 265, the Court, after citing Dolphin Maritime, held that it is the purpose of the parties that matters (but not whether the position of the third party can be improved):

“40. I consider that the purpose of the parties, in particular of the Lloyd’s syndicates, in agreeing clause 7 was to protect those syndicates from any possible liability to Aigaion in circumstances where, as they knew, the Aigaion policy contained the Follow Clause. Their purpose was not to confer a benefit on Aigaion, though clause 7 might improve the position of Aigaion if, contrary to my view, the Follow Clause operated by way of agency.” (Emphasis added.)

19.  Following Dolphin Maritime, the Singaporean case of Columbia Asia Healthcare Sdn Bhd v Hong Hin Kit Edward And Another [2014] 3 SLR 87 at §§276-279 held that to show that the term purports to confer a benefit on the third party, it is necessary to show that the third party was an intended beneficiary (rather than incidental beneficiary).

20.  The test is not whether any benefit has been conferred upon a third party, but whether the term purports to confer a benefit.

21.  In the present case, the Plaintiff relies upon the following clauses of the Service Agreement:

Clause	Content
Second paragraph of preamble	本公司特別提醒用戶認真閱讀本協議的全部條款，特別是其中免除或者限制本公司責任的條款（該等條款通常含有“不負任何責任＂、“無義務＂、“不保證＂等詞彙）、限制用戶權利的條款（該等條款通常含有“不得＂、“不應”、“無權”等詞彙）、法律適用和爭議解決條款，這些條款應在香港法律所允許的範圍內最大程度地適用。您點擊同意、接受或下一步，或您註冊、使用本公司遊戲服務均視為您已閱讀並接受本協議的全部內容。此後您不得以未閱讀／未同意本協議內容或類似理由提出任何形式的抗辯。
三、遊戲帳號 (“Clause 3”)	1、您在使用遊戲服務之前須使用真實身份資訊註冊郵箱帳號或本公司認可的其他協力廠商帳號（如Google 、Facebook 等帳號）註冊遊戲帳號（以下簡稱“用戶帳號”）。 2、用戶同意，您所提供的個人註冊資料將作為本公司認定用戶與遊戲帳號的關聯性以及識別用戶身份的唯一依據。用戶有義務妥善保管用戶帳號及密碼，並合理地使用其帳號及密碼，本公司將採取合理的技術和管理措施保證用戶的帳號及密碼安全。任何一方未盡上述義務導致帳號、密碼被盜、遺失等情形而給您或他人的權利造成損害的，應當承擔由此產生的法律責任。
六、用戶行為規範 (“Clause 6”)	2、您在使用本公司遊戲服務過程中，不得從事以下不正當遊戲行為： (1)發佈、傳播非法言論或不當資訊，包括但不限在遊戲中發佈不雅言論、垃圾廣告資訊、 宣傳外掛、病毒、代練、線下交易等資訊； … (9) 在遊戲中，涉及違反香港及本公司遊戲發行地所屬國家或地區法律、違背社會道德文明準則的言語或行為，包括但不限於宣傳或參與賭博、宣傳邪教、暴力等行為； (10) 其他在行業內被廣泛認可的不當行為。 3、您在使用本公司遊戲服務過程中違反用戶行為規範從事上述行為之一的，本公司有權視情節嚴重程度，依據本協議及相關遊戲規則的規定，對您採取以下規定的一種或多種處理措施： … (2) 禁言，關閉違規玩家全部或部分的聊天頻道，使違規玩家無法在遊戲中發言、與其他玩家聊天； … (10) 承擔法律責任，違規玩家的不當行為對他人或者本公司造成損害的，追究違規玩家相應的民事、行政或刑事責任； …
十、法律適用 (“Clause 10”)	本協議的訂立、履行、解釋及爭議的解決均適用香港法律（不包括衝突法）。凡因本服務條款引起的或與本服務條款有關的任何爭議，應提交中國國際經濟貿易仲裁委員會香港仲裁中心，按照申請仲裁時該會現行有效的仲裁規則進行仲裁。仲裁裁決是終局的，對雙方均有約束力。仲裁地應為香港。此外，若本服務條款有任何部份無效，亦不影響其他部份之效力。

22.  First, I agree that section 4(1)(a) is inapplicable, because there is no provision expressly stating that a third party may enforce the Service Agreement.

23.  Secondly, I also agree with Mr Siu that going through the clauses relied upon by the Plaintiff, none of them purport to confer any benefit on the Plaintiff. As such, section 4(1)(b) is inapplicable.

24.  Thirdly, I am of the view that on a proper construction, those terms are not intended to be enforceable by the third party. For instance, Clause 6(2) sets out the conducts prohibited by Qookka, i.e. Clauses 6(2)(1)-(10). Clause 6(3) stipulates that if there are serious breaches of Clause 6(2), Qookka has the right to impose the measures in Clause 6(3)(1)-(11). Most of the measures including “禁言”, “限制遊戲”, “封號” could only have been imposed by Qookka as the game developer. Clause 6(3) is intended to benefit Qookka as a game developer.

25.  Fourthly, I agree that on proper construction of the Service Agreement, a third party is not subject to the arbitration agreement. In Clause 10, it is stated that the arbitration agreement was confined to “雙方”, i.e. the gamer and Qookka.

26.  For the above reasons, I am of the view that there is no arbitration agreement between the Plaintiff and the Defendant. This should be dispositive of the Plaintiff’s Stay Summons.

27.  The Defendant further submitted that by making the interim injunction application, the Plaintiff is not entitled to apply for a stay under section 20 of the Arbitration Ordinance, Cap. 609.

28.  Section 20 of the Arbitration Ordinance modelled on the UNCITRAL Model Law, and is almost identical to the Article 8 of the First Schedule to the New Zealand Arbitration Act 1996. In the New Zealand case of Property People Ltd v Housing New Zealand Ltd (1999) 14 PRNZ 66, the plaintiff applied for an application for interim injunction, and the defendant filed the notice of opposition to the interim injunction application and affidavits in support (§§5-6). After the plaintiff’s interim injunction application was dismissed, the defendant applied for stay application (§§7, 12). In rejecting the defendant’s stay application, one of the reasons pronounced by the Court was that the notice of opposition to the interim injunction application and affidavits in support constitute a statement on the substance of the dispute (§24).

29.  Further, in Anderson Switchboards and Electronics Ltd v Schneider Electrical (NZ) Ltd (M1215 IM00, 16 January 2001), one of the grounds relied upon by the applicant is that the dispute is the subject of an arbitration agreement, and should be referred to arbitration (§10). The Court rejected the argument and held that the applicant’s affidavit in support of the application constituted the first statement on the substance of the dispute (§10(b)). The Court clarified §24 of Property People and held that an application for stay was out of time once a person has made a statement on the substance of the dispute, regardless of whether it is made before any hearing of interim injunction.

30.  In Fisken and Associates v Frew (CP33/01, 24 August 2001), the plaintiff applied for an injunction (§9). The defendant filed a notice of opposition and affidavits (§9). After the injunction application was declined, the defendant applied for stay of proceedings (§11). The Court rejected the application for stay, and held that:

“37. With respect, however, to that issue, the issue of timing per se must be irrelevant to whether art 8(1) applies or not. The issue under art 8(1) is whether the Defendants submitted their first statement on the substance of the dispute in the notice of opposition and affidavits filed in opposition to the injunction. The inquiry must be as to the substance and content of the response to determine whether the Defendants addressed the substance of the dispute in the documents filed for the injunction hearing. Time pressures could only be relevant in a practical sense if a defendant responded to an application for injunction on a Pickwick basis without filing papers, or otherwise responded to an injunction orally or on a very pro forma notice of opposition without any substantive affidavits because of the time constraints. In such a situation it may be that the Court would find the defendant could not properly be said to have submitted a statement on the substance of the dispute. Apart from that practical situation, however, I do not see how it can be suggested timing is properly a consideration as to whether art 8(1) applies or not.

…

41. Both named First Defendants filed substantive affidavits in opposition to the application for interim injunction. Those affidavits dealt with the merits of the claim and in particular whether they had taken confidential information belonging to the Plaintiff. The First Defendants at that time denied (in Mrs Frew's affidavit) that the contracts still applied.

…

47. Despite Mr Wright's submissions to the contrary, like Salmon J in The Property People Ltd (supra) case, I find in this case that the notice of opposition to the interim injunction application and the affidavits filed in support of it constituted a statement by the First Defendants on the substance of the dispute. They are therefore now unable to rely on art 8(1).” (Emphasis added.)

31.  In Pathak v Tourism Transport Ltd (CP 641 SW/01, 20 August 2002), the Court considered the position where the stay application was made by a plaintiff who had applied for injunction. The Court at §47 said:

“In my view, a critical distinction is to be drawn between a party who initiates curial interim injunction proceedings in anticipation or in aid of arbitral proceedings and a Plaintiff who does not. If proceedings are issued to seek an interim injunction without reference to the arbitration agreement, I am of the view that The Property People Ltd and the cases which follow apply to prevent a Plaintiff who issues such proceedings from subsequently seeking a stay. Similarly, a Defendant who opposes interim relief and fails to seek a stay (or protest jurisdiction) in respect of the substantive dispute will also be prevented from seeking a stay: see The Property People at para [24].” (Emphasis added.)

32.  The rationale is that Article 9 of the First Schedule of the Arbitration Act 1999 (equivalent of section 21 of the Arbitration Ordinance), which expressly stated that an interim measure application is not “incompatible with an arbitration agreement”. On the facts of that case, the interim injunction was commenced by the plaintiff in aid of arbitral proceedings. Nonetheless, the Court still rejected the plaintiff’s application because of the plaintiff’s failure to make an application to stay immediately after the interim measure application.

33.  I agree that the Plaintiff is no longer entitled to seek relief under section 20 of the Arbitration Ordinance after “submitting his first statement on the substance of the dispute”. The application for the interim injunction together with the supporting affirmations which addressed the merits of the Plaintiff’s claims were not made in aid of an arbitration.

REQUEST FOR ELECTRONIC RECORDS

34.  I also dismiss the application for discovery of electronic records. First, there is no explanation as to how the requested documents relate to a matter in issue in the action; and are necessary for disposing fairly of the cause or matter or for saving costs.

35.  Mr Siu for the Defendant is correct that the application for discovery for the electronic records is problematic in the present case as the pleadings have not been closed. In fact, not even the Statement of Claim was filed. The Plaintiff has failed to put forward any “exceptional circumstances” required by the law to justify a discovery request before the close of pleadings.

36.  Finally, I also agree that paragraph 4 of the Stay Summons should be dismissed once paragraph 3 is dismissed. It constitutes an application for injunctive relief through the backdoor of Order 24 rule 7.

DISPOSITION

37.  For all the reasons stated above, this Court dismissed the Stay Summons.

38.  As far as costs are concerned, I am of the view that this case merits an order for costs on an indemnity basis. There is no justification for the Plaintiff to choose to commence both a High Court action and an arbitration when the Plaintiff cannot even show that there was an agreement between the Defendant and Qookka, let alone one involving the Plaintiff. Indeed, the Plaintiff accepted that her contention that there was an agreement between the Defendant and Qookka is “subject to discovery”. (See §1 of the Plaintiff’s Skeleton)

39.  Madam Justice Mimmie Chan had already observed and invited the Plaintiff to consider whether it would like to withdraw the present action.

40.  As this application for stay is futile and abusive on many bases, I am of the view that there is no reason why the Defendant should not be compensated by a costs order on an indemnity basis.

Mr LIM Chi Yu Alvin of LIMS Solicitors, for the Plaintiff

Mr Stephen SIU and Mr Felix H Y TANG instructed by Tung, Ng, Tse & Lam, for the Defendant

HCA 2092/2024

[2025] HKCFI 4356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2092 OF 2024

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DECISION ON COSTS

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1.  I refer to my Decision handed down on 14 July 2025. I refer to the costs order nisi I made at §51, that P shall bear the costs of and occasioned by the SC Summons, both here and below, with certificate for counsel, to be summarily assessed.

2.  I have considered D’s 2 Statements of Costs, one of 7 April 2025 regarding the substantive hearing before Master Hew on 8 April 2025 (“Statement of Costs/Hearing”), and the other of 28 July 2025 regarding the appeal (“Statement of Costs/Appeal”), P’s 2 Statements of Objections both of 20 August 2025, and D’s Reply of 27 August 2025.

Statement of Costs/Hearing

3.  For A4 (Fee Earners’ Rate), I am of the view that the involvement of an experienced partner in the conduct of D’s case is reasonable.  I do not accept P’s suggestion that only a solicitor with 2 years PQE needed to be involved.  An experienced principal was indeed involved in the conduct of P’s case.

4.  For B (Manual Work), the total claimed amount of HK$4,026 is reasonable.   

5.  For C (Communications etc), I am of the view that the total number of hours of 6.5 hours in the total amount of HK$23,300 are excessive.  I allow only HK$12,000.

6.  For D1 and D2 (Professional Work – Preparation and Perusal of Documents), I am of the view that the total number of hours of 7 hours in the total amount of HK$29,400 are excessive.  This is particularly so when counsel was engaged to settle documents.  I allow only HK$15,000.

7.  For E (Counsel), engagement of counsel for the 3-minute hearing on 7 February 2025 is in my view unreasonable.  I reduce E1(1) by HK$10,000.

8.  Adopting a broad-brush approach, I summarily assess the costs at HK$110,000.

Statement of Costs/Appeal

9.  For A4 (Fee Earners’ Rate), I am of the view that the involvement of an experienced partner, a solicitor admitted in 2024 and a legal executive are reasonable.

10.  Manual Work under B is agreed.

11.  In respect of C (Communications etc), I refer to section E of my Decision on “Events after the substantive hearing of the SC Summons”.  Given the occurrence of those matters set out therein, I am of the view that the total number of time (12 hours) and costs (HK$42,400) are reasonable.

12.  For D1 and D2 (Professional Work – Preparation and Perusal of Documents), despite the occurrence of those matters set out in section E of my Decision, I am of the view that the total number of hours of 6 hours in the total amount of HK$18,800 are excessive.  I allow only HK$10,000.

13.  For E (Counsel), I am of the view that Mr Siu’s brief of HK$80,000 is reasonable.

14.  Adopting a broad-brush approach, I summarily assess the costs at HK$151,000.

HCA 2092/2024

[2025] HKCFI 2734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2092 OF 2024

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BETWEEN

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__________________

DECISION

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A. Introduction

1.  By Summons of 13 January 2025 (the “SC Summons”), the defendant (“D”) seeks against the plaintiff (“P”) security for costs. After hearing on 8 April 2025, Master Hew dismissed the same (the “Decision”). This is the appeal by D of that Decision.

2.  Mr Stephen Siu with Mr Felix H.Y. Tang appeared for D. Mr Albert Cheung appeared for P.

B. Affirmatory evidence

3.  The SC Summons is supported by the affirmation Mr Tong Sung Hin of 13 January 2025 (“Tong”, and “Tong/Aff”). Tong is a solicitor with Messrs. Tung Ng Tse & Lam (“TNT&L”), D’s solicitors. In opposition, P has caused to be filed the 2^nd affirmation of Mr Lim Chi Yu Alvin (“Mr Lim”, and “Lim/Aff2”). Mr Lim is the principal of Messrs. Lims Solicitors (“Lims/Firm”), P’s solicitors.

4.  Also relevant to the present appeal are P’s 1^st and 2^nd affirmations dated respectively 20 December 2024 and 9 January 2025 (“P/Aff1” and “P/Aff2”), and Mr Lim’s 1^st and 3^rd affirmations (“Lim/Aff1” and “Lim/Aff3”).

C. The background facts

5.  P has described herself as a renowned gamer of the mobile game三國志（戰略版）(the “Mobile Game”). She says that D is a gamer of the Mobile Game and whom she (P) has taken under her wings.

6.  By writ of 18 October 2024 with a general indorsement (the “Writ”, and “General Indorsement”), P commenced the present action against D. P claims thereby an injunction restraining D from posting, publishing etc. defamatory statements against her, and an order compelling removal of any such statements posted or published.

7.  The following about the Writ are relevant:

(a) The Writ is both in English and Chinese;

(b) In respect of the English version:

(i) The front page states the “Claim nature” at the top left hand corner, the Action number at top right and top middle, bears the seal towards the top left, states the names of the parties at the title, and states D’s address;

(ii) On the second page, Lims/Firm signed towards bottom right as “Solicitors for the Plaintiff”, and states immediately above that signature as follows (the “Statement of Address”):

THIS WRIT was issued by Messrs. LIMS SOLICITORS, of Unit 1304, 13^th Floor, Tower One, Lippo Centre, 89 Queensway, Hong Kong for the Plaintiff of 8^th Floor, 8 Pilkem Street, Kowloon, Hong Kong.

(iii) The General Indorsement is in English, and is signed by Lims/Firm as P’s solicitors;

(c) In respect of the Chinese version:

(i) The front page states only the names of the parties at the title and D’s address. None of the other matters that appear on the front page of the English version as described above appears;

(ii) On the second page, only the following has been added to the proforma:

本令狀是由代表上述原告人的林志宇律師事務所發出，其地址為香港金鐘道89號力寶中心第一座13樓1304室，而該原告人的地址則為。

P’s address has not been stated.

8.  For ease of reference, I will refer to:

(a) Lims/Firm’s address as stated on the Writ (i.e. Unit 1304, 13^th Floor, Tower One, Lippo Centre, 89 Queensway, Hong Kong) as the “Admiralty Address”; and

(b) P’s address as stated on the English version of the Writ (i.e. 8^th Floor, 8 Pilkem Street, Kowloon, Hong Kong) as the “Pilkem Street Address”.

9.  There is no dispute that at 8 Pilkem Street is Pilkem Commercial Centre (the “Building”). The name of the Building is not stated in the Pilkem Street Address. I do not find that omission by itself to be of any significance.

10.  P has taken out 2 interlocutory applications:

(a) The first one, taken out on 20 December 2024, was for an interlocutory injunction restraining publication. Interim-interim relief has been refused. Substantive hearing remains pending, with no hearing date yet fixed;

(b) The other one was taken out on 25 February 2025, for stay pending arbitration, together with certain related interim orders. I repeat that it was, indeed, taken out by P, though it was she herself who had started the action. The application was heard before Mr Recorder William Wong SC on 30 April 2025, who dismissed the same with indemnity costs assessed at HK$200,000.

11.  In support of her application for interlocutory injunction, P has filed P/Aff1 and P/Aff2:

(a) In the former, she states her address as being “8^th Floor, Pilkem Commercial Centre, 8 Pilkem Street, Kowloon, Hong” – i.e. the Pilkem Street Address with the addition of the name of the Building. In the latter, she states her address as being the Admiralty Address;

(b) In those affirmations, she describes her reputation and goodwill as a gamer, that she was a leader of hundreds of “clan members”, how the clan members could communicate through different channels, and how she says D had published derogatory and defamatory remarks about her in those channels. She says that a notice to D to desist issued in a related chat group had no effect, which in fact escalated the matter, leading to her being exposed to public hatred. P further describes how certain documents used, or information disclosed, in the action became revealed and circulated in chat groups;

(c) In particular, at §12 of P/Aff2 (the relevance of which I will come back to later), she says that she was able to “seek direct evidence (evidence from person(s) who have witnessed the tortious acts of [D] as mentioned and described in [P/Aff1] against the D”. She produces what she describes to be a copy statement from a gamer. She says further that:

… Shortly after the service of the [Writ], my full name and my address stated therein were revealed in open message in the Mobile Game by a gamer who has another username. I confirm that I have not disclosed my real name and address to any other person being gamer of the Mobile game other than my legal representative in these proceedings. Such malicious disclosure of my personal information, particularly when it is certainly disseminated by [D] in public including other gamers, warrant an immediate injunctive relief against further damages. Further, despite a [Writ] was issued and received by [D], her act of publicizing it has proven that the injunctive relief sought in the Summons should be granted during interlocutory stage of these proceedings until conclusion thereof. Worse still, I am also given to understand that the [D] has been showing [P/Aff1] around. With the fear of having personal information be disclosed, gamers who agreed to stand as my witness were concerned by leakage of their personal information as the acts of [D] at present gave them the impression that retaliation from [D] is inevitable. With such, I believe there is highly probable that [D] will continue make defamatory statements against me anytime hence there is certainly an urgency to put a stop to [D’s] act.

D. D’s SC Summons

12.  On 30 December 2024, TNT&L wrote to Lims/Firm and pointed out the fact that the Pilkem Street Address on the Writ was that of a branch of Lims/Firm. They requested that P’s address be provided, and explanation as to whether there was any innocent reason for the failure on P’s part to state her address in the Writ.

13.  In reply, Lims/Firm stated in their letter of 3 January 2025 that the allegations made by TNT&L were “incomprehensible”, that any non-compliance of the Rules of the High Court was “categorically denied”, that the allegations should not have been made as the Writ was issued by Lims/Firm, and that “it is intriguing to learn how the addresses could not be identical…”

14.  The SC Summons was shortly thereafter taken out. The principal basis of D’s application concerns the Pilkem Street Address. D says that the name of the Building has been omitted therefrom. D relies also on the fact that the Pilkem Street Address is in fact the address of a branch office of Lims/Firm. D says that when the matter was raised with Lims/Firm, the response received was evasive. Tong in §14 of Tong/Aff says that “there are reasons to believe that [P] has deliberately failed to state or mis-state her address with a view to evading the consequences of the litigation.”

15.  The call-over hearing of the SC Summons took place before Master A Ho on 7 February 2025. In the course of the hearing, Master A Ho enquired whether P was a resident residing in Hong Kong. P’s solicitors from Lims/Firm solicitors replied that he had “no instructions on that”, and that the issue of P’s “residence status” would be dealt with in the affirmation to be filed.[1]

16.  In the end, P herself has filed no affirmation in opposition. Lim has filed Lim/Aff2. He says that he has been duly authorised to do so in opposition of the SC Summons. He says or asserts therein that:

(a) As the Writ was issued by Lims/Firm, O.6 r.5 does not require P to give her residential address;

(b) “…[P] was/is given access to and use the offices of my firm”[2];

(c) There was no mis-statement by P, nor any intention on her part to deceive, nor intention to evade from legal consequences; and

(d) The costs for which security is being sought is unrealistic and unreasonable.

P’s “residence status” is not dealt with in Lim/Aff2.

17.  The substantive hearing of the SC Summons took place on 8 April 2025.

18.  In anticipation of that hearing, Ms Ferrida Chan, counsel then for P, lodged her written submissions (“P/Master Written Submissions”). It was dated 3 April 2025. The main points she made on P’s behalf can be gleaned from the following paragraphs:

34. … it is admitted that [P’s] address was misstated in the [Writ], but such mis-statement was made innocently and without intention to deceive, because:

34.1. [P’s] actions throughout the proceedings reflect a legitimate desire to protect privacy or avoid harassment because of the litigation; and

34.2. be that as it may, the court cannot rule out the possibility that [P] might not have been properly advised by her instructing solicitors when asked to provide her address. (emphasis added for ease of presentation).

In his written submissions before this court, Mr Siu gives the submissions made by Ms Chan at §34.2 of P/Master Written Submissions the label the “Wrong Advice Argument”. I adopt that term for ease of presentation.

19.  Mr Siu informed this court, not disputed by Mr Cheung, that it was via P/Master Written Submissions which D for the first time became aware that P would admit the mis-statement of the her address in the Writ, and that she would raise the “possibility” that she might not have been properly advised by her solicitors.

20.  Upon sight of P/Master Written Submissions, TNT&L on 7 April 2025 wrote to Lims/Firm. They referred to P/Master Written Submissions. They noted that serious allegations were made against Lims/Firm. They asked Lims/Firm to “confirm (1) whether your client has waived the privilege as to the legal advice obtained from your firm in this regard; and (2) whether you confirm that wrong or improper legal advice has been given to your client as stated in the Submissions.”

21.  There has been no reply to that letter.

22.  On 8 April 2025, having heard parties, Master Hew accepted the Wrong Advice Argument and refused the application. He ordered Lims/Firm to pay 75% of the costs of the SC Summons (“Master Costs Order”).

23.  In the course of the hearing before this court, Mr Cheung informed this court that it was Lims/Firm who through counsel proposed the Master Costs Order to Master Hew. Mr Cheung further informed this court that Lims/Firm had not sought to appeal against that costs order.

E. Events after the substantive hearing of the SC Summons

24.  Shortly after the substantive hearing of the SC Summons, TNT&L on 14 April 2025 wrote to Lims/Firm. They referred to the Wrong Advice Argument made before the Master. They then said that:

We trust that as of now, your client should have been correctly advised as to the requirement to state her own residential address in the Writ. In the circumstances, we write to request your client to state her residential address by making all necessary application to amend the Writ so that the requirement under the Rules of the High Court is complied with.

Should your client still fail to state her residential address in the Writ by close of business on 17 April 2025, we will in appropriate occasion invite the Court to draw appropriate inference against your client, including but not limited to an inference that your client has intention to deceive and/or is ordinarily resident out of the jurisdiction.

25.  There has been no reply to that letter.

26.  On 16 June 2025, Mr Siu lodged his written submissions for intended use during the appeal before this court.

27.  On 17 June 2025, Mr Cheung lodged his in opposition. He adopts therein arguments similar to those that were made in the P/Master Written Submissions, though in slightly stronger terms. In particular, §4 thereof reads as follows:

4. The Plaintiff invites this Court to infer from the ample evidence presented in the affirmations filed by the Plaintiff that the mis-statement was made innocently and without intention to deceive, because:

4.1. the Plaintiff’s actions throughout the proceedings reflect a legitimate desire to protect privacy or avoid harassment because of the litigation; and

4.2. be that as it may, the court is able to draw a strong inference and find on balance of probabilities that the Plaintiff might not have been properly advised by her instructing solicitors when asked to provide her address.

Mr Cheung develops his §4.2 at section D.2 of his written submissions, which bears the heading of “The Possibility That the Plaintiff Might Not Have Been Properly Advised by Her Instructing Solicitors When Asked to Provide Her Address”. That heading is verbatim the same as the underlined part of §34.2 of the P/Master Written Submissions. Importantly, the work “possibility” has been maintained.

28.  Throughout, P has filed no affirmation confirming that possibility, or that she mis-stated her address on the Writ because of erroneous legal advice, or that she did so out of her desire to protect her privacy or to avoid harassment. Equally, Mr Lim has filed no evidence confirming that possibility, or to explain why he did not (for example because P has refused to waive her privilege).

29.  Parties came before this court on 19 June 2025. The first thing Mr Siu informed this court was a latest development that had taken D by surprise. The day before, at about 5:00 pm, with no prior warning, D was served with an amended Writ. It is indorsed as having been “Amended as in red pursuant to Order 20, Rule 1 of the Rule of the High Court”. The only material amendment goes to the Statement of Address in the English version. The words “8^th Floor, 8 Pilkem Street, Kowloon, Hong Kong” have been crossed out, followed by the addition of what appears to be an address at Wu Kai Sha Road[3] (the “WKS Address”). The backsheet suggests that it was re-filed on 18 June 2025 (the day before the present appeal). There is no accompanying affirmation from P explaining why she made the amendment, the reason therefor, the reason for the lateness, what the nature of the WKS Address is, whether that is her residential address, or whether she is ordinarily resident there, or indeed in Hong Kong. Mr Cheung has not even been able to produce to me any covering letter from Lims/Firm for the same.

30.  In the course of the appeal, Mr Cheung frankly informed this court that he could offer no explanation on the lateness of the amendment. And I can see none.

31.  Despite the lateness, TNT&L nonetheless was able to perform a land search on the WKS Address. P is not the registered owner of the property concerned. There is on the face of the land search nothing which connects P to the WKS Address.

32.  In the course of submissions in relation to the WKS Address, Mr Cheung waved in his hand a document which he said to be a bank statement. This court intervened and observed that if P wanted to adduce any further evidence on address, an application ought properly to be made, and that there could be costs consequences. Having taken instructions, Mr Cheung informed the court that he had no application to make.

33.  So that was the state of play at the time of the appeal – no further affirmation from or on behalf of P, but just a Writ amended by the substitution of the Pilkem Street Address with the WKS Address at the very last moment with no accompanying explanation or evidence. Nor has any Statement of Claim been filed.

F. Discussion

34.  The SC Summons was issued pursuant to O.23 r.1, which provides relevantly as follows:

(1) Where, on the application of a defendant to an action or other proceeding in the Court of First Instance, it appears to the Court—

(a) that the plaintiff is ordinarily resident out of the jurisdiction, or

(b) …

(c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein, or

(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just.

(2) The Court shall not require a plaintiff to give security by reason only of paragraph (1)(c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.

35.  In his written submissions, Mr Siu relies principally on O.23 r.1(1)(c).

36.  In resisting the appeal, Mr Cheung adopts the same stance as counsel for P did when before Master Hew. For a start, he maintains the admission that P’s address was mis-stated in the Writ.

37.  The admission in my view is correctly made:

(a) O.6 rr.5(1) and (2) provide as follows:

(1) Before a writ is issued it must be indorsed—

(a) where the plaintiff sues by a solicitor, with the plaintiff’s address and the solicitor’s name or firm and a business address of his within the jurisdiction and also (if the solicitor is the agent of another) the name or firm and business address of his principal;

(b) where the plaintiff sues in person, with the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent.

(2) The address for service of a plaintiff shall be—

(a) where he sues by a solicitor, the business address to which may be added a numbered box at a document exchange of the solicitor indorsed on the writ;

(b) where he sues in person, the address within the jurisdiction indorsed on the writ.

(b) The address which must be indorsed pursuant to O.6 r.5(1), and the address for service regulated by O.6 r.5(2) are 2 different matters, and serve different purposes. This is made clear by Kwan J (as the V-P then was) in Re Like Grand Holdings Ltd (HCCW 603/2001, 11 July 2003). Whilst the originating process in that case was a petition, O.6 r.5 with the necessary modification equally applied. The learned judge cited at §6 of the judgment O.6 r.5(1). Her Ladyship then observed and explained that (emphasis added):

7. O.6 r.5(2) deals with the address for service of a plaintiff. I do not propose to set out this provision except to draw the attention of the parties to this. In the commentary in Hong Kong Civil Procedure 2002 Vol. 1 paragraph 6/5/5 under the heading of “Address of the plaintiff”, the relevant extract reads as follows:

“Where a plaintiff sues by a solicitor, his address need not be his ‘place of residence’, but where he sues in person, it must be his place of residence, i.e. the place which he occupies as his home, where he lives.”

8. I pause here to remark that this would be appear to be a reference to the address for service which is dealt with in O.6 r.5(2). The relevant extract in this commentary continues as follows:

“If a plaintiff in person has no place of residence within the jurisdiction, or he has no place of residence, this fact must be stated in the indorsement of the writ, and the address of a place within the jurisdiction must be indorsed on the writ. In any case, the address must be a genuine address (cf O.12, r.3(4) in the case of an acknowledgment of service and see Pittsburg, etc., Co. v Marx [1897] WN 36). If the address is not truly or correctly stated, the plaintiff may be ordered to amend by stating the correct address, or the proceedings may be stayed, or he may be ordered to give security for costs. (see O.23 r.1(1)(c)).”

9. It is important that the requirements as to the provision of the address of a petitioner must be observed. The purpose of requiring a plaintiff or a petitioner to state his address as well as his solicitor’s address, which is the address for service, is to inform the other party whether the plaintiff or petitioner is ordinarily resident within or outside the jurisdiction; if it is the latter, the other party may wish to apply for security for costs. Thus, the address of the petitioner that should be stated in the petition must be his place of residence.

(c) The Pilkem Street Address is the address of a branch office of Lims/Firm. Whether P had been given access or use of that office, it is clearly not P’s place of residence.

38.  The effect of that admission is that a case of mis-statement under paragraph O.23 r.1(1)(c) has been admitted, such that subject to O.23 r.1(2), the court’s discretion to order security, if the court thinks it just to do so having regard to all the circumstances of the case, is engaged.

39.  In opposing the appeal, P seeks to invoke O.23 r.1(2). I have set out above §§4 to 4.2 of Mr Cheung’s written submissions.

40.  In relation to the regime under O.23 r.1, and in so far as relevant here, I highlight and consider 4 matters:

(a) The first concerns the interaction between O.23 r.1(1)(c) and O.23 r.1(2). The proof of a case under O.23 r.1(1)(c) does not necessarily lead to any order for security for costs. O.23 r.1(1)(c) is expressly made subject to O.23 r.1(2). In particular, if O.23 r.1(2) is successfully invoked, the court “shall not” require the plaintiff to give security by reason only of O.23 r.1(1)(c). In that case, the court’s discretion is not engaged;

(b) Secondly, when it comes to the operation of O.23 r.1(2), its wording should in turn be noted:

(i) It is for the plaintiff to “[satisfy] the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive”. In other words, the onus of satisfying the court that the mis-statement was made innocently and without intention to deceive is on the plaintiff seeking to invoke O.23 r.1(2) – and see if necessary Verralls Amy v Maria Gina La Giglia [2018] 5 HKLRD 362 at §33(ii). The standard of proof is one of balance of probabilities;

(ii) I highlight the conjunction “and”. It is for the plaintiff to satisfy the court that the failure to state or mis-statement, as the case may be, was made “innocently and without intention to deceive”. The presence of “intention to deceive” will in most cases negate innocence. But absence of intention to deceive does not necessarily equate innocence. Whilst exhaustive definition of those terms is not possible, the above are in my view clear;

(iii) On the scope and purpose of O.23 r.1(1)(c), Mr Cheung refers to Buildtech Enterprise International Ltd v OK Construction Materials (Supply) Co Ltd[2021] HKCFI 1837. Therein at §6, Lok J observed that (emphasis added for ease of presentation):

An order for security for costs is not intended to be a sanction against the use of an incorrect address without a proper explanation. There should be an element of deception in the misstatement in order to justify an order for security for costs. This is why a plaintiff can avoid giving security by showing that he did not have any intention to deceive under r 1(2). The purpose of an order for security under O 23 r 1(1)(c) is not to facilitate enforcement of judgments. It is targeted at deceitful plaintiffs only and not those who do not have assets readily amenable to easy execution.

(iv) I note that in making those observations, and in particular in the underlined part of that paragraph, the learned judge did not make any reference to the requirement of “innocently” as required by O.23 r.1(2);

(v) The learned Judge cited in support of that paragraph the decision of HHJ Kent Yee in Cheng, Henry v Imperial Sierra Group Holdings Ltd[2020] HKDC 977[4] §§27 and 35;

(vi) In Cheng Henry:

(1) at §27, the learned District Judge observed that (emphasis also added for ease of presentation):

However, I do not think that an order for security for costs is intended to be a sanction against the use of an incorrect address without a proper explanation. There should be an element of deception in the mis-statement in order to justify an order for security for costs. This is why the plaintiff can avoid giving security by showing that he did not have the intention to deceive under r.1(2).

(2) Equally, in that paragraph, and in particular in the underlined part thereof, the learned District Judge did not make reference to the element of “innocently”. Nor was the relevance of the conjunction “and” considered;

(vii) On the facts of Buildtech and Cheng Henry, I respectfully agree that in those 2 cases, the courts’ discretion to order security should not be exercised. In the former, the updated and correct addresses of the 1^st and 2^nd corporate plaintiffs had been registered with the Company Registry and hence could be easily found. In the latter, the plaintiff had stated his correct address in another action involving the same parties. However, with the greatest respect, I see no justification in fettering the courts’ discretion under O.23 r.1(1)(c) in the way the learned judges did, without appropriate regard to the requirement of “innocently” and the conjunction “and”;

(viii) However, as we shall see, the result of the present appeal does not hinge upon the above intricacy, as in my view, P has failed to satisfy this court that she at the relevant points of time did not have the intention to deceive when the mis-statement was made, or that she did it innocently;

(c) The third matter concerns timing:

(i) Mr Cheung submits[5] that the “core issue that this Court ultimately has to decide is at the time of the filing of the Writ of Summons and the Indorsement, whether the Plaintiff’s mis-statement of her address was made innocently and without intention to deceive”;

(ii) I do that accept that rigid and technical approach. A mis-statement[6], once made, and until corrected, represents a continuous state of affairs (that the plaintiff resides in the stated address). In my view, O.23 r.1(2) requires that the making of the state of affairs to continue to be an innocent one, and without any intention to deceive. It is not confined to the point of time when the very mis-statement was made. There can be change of circumstances between that time and the time when any application for security for costs comes to be considered. It would be in my view absurd to suggest that the consideration should be frozen to the time when the mis-statement was made, so that despite any change of circumstances (for example subsequent acquisition of knowledge or formation of intention) suggesting absence of innocence or presence of intention to deceive as at the time of the application, the court remains disentitled to apply O.23 r.1(1)(c);

(iii) I record that in the course of the hearing, and upon request from this court for clarification, Mr Cheung said that he might not have stated his position clearly in that paragraph of his submissions. What he meant was that the time when P filed the Writ was the starting point of the consideration;

(d) The 4^th matter concerns the evidence that this court can take into account when deciding the appeal. Both parties have referred to events that took place after the substantive hearing of the SC Summons before Master Hew. I have also set those events out above. Both parties accept that those events can be, and indeed should be taken into account for the purpose of this appeal. The exercise of my discretion is required to be exercised having regard to all the circumstances of the case. Those events, albeit post-hearing, form part of those circumstances. Nor does O.58 r.1(5) post any difficulty, as it does not apply to “evidence as to matters which have occurred after the date on which the judgment, order or decision [under appeal] was given or made”.

41.  For the above reasons, I allow the appeal and order P to make security for costs:

(a) P has admitted that the provision of the Pilkem Street Address involved a mis-statement;

(b) Subject to O.23 r.1(2), the court’s discretion under O.23 r.1(1)(c) is engaged;

(c) The onus is on P to satisfy the court that the mis-statement “was made innocently and without intention to deceive”;

(d) It has been said on P’s behalf that her actions throughout the proceedings reflect a legitimate desire to protect privacy or avoid harassment;

(e) That submissions was first made on her behalf before Master Hew, and repeated before this court;

(f) P has filed no evidence in support of that desire;

(g) Mr Cheung indeed accepts that there is before this court no direct evidence on that desire. He in the course of the hearing pointed to §12 of P/Aff2 and submitted that she has impliedly said so;

(h) Those affirmations were filed in the context of her application for interim relief. If she had wanted to state and confirm her said desire for the purpose of opposing the SC Summons, she could easily have done so;

(i) I have in any event considered §12 of P/Aff2. I have summarised and set out above the material parts of that paragraph. I do not accept that there is any implied assertion of that desire there;

(j) Mr Cheung admits[7] that “the avoidance of [P] to state her residential address is not a satisfactory means of protecting her privacy or avoiding harassment”. Whilst he admits that, he goes on to submit that (emphasis added for ease of presentation):

the court cannot rule out the possibility that her mis-statement of her address stemmed from a genuine, albeit misguided, belief that doing so would allow her to shield herself from further intrusion to her privacy or avoid harassment.

(k) An important facet of that submissions is that P’s belief was “misguided”. That involves the validity of the Wrong Advice Argument;

(l) Neither P nor Mr Lim has filed any evidence stating what advice had been provided to P, nor what P did as a result;

(m) Such evidence could easily have been given, even before the substantive hearing before Master Hew. There had been none. There is still none;

(n) Mr Cheung invites this court to draw inference from Lims/Firm’s letter of 3 January 2025 and Lim/Aff2;

(o) Nowhere in that letter or affirmation reveals what advice Lims/Firm had given to P, the correlation between the advice and the mis-statement, when they became aware that the advice were mistaken (if they were mistaken), and what remedial actions were then thought to be required, and why they were not taken. P’s case, even up to this appeal, is put on the basis of there being a “possibility that [P] might not have been properly advised”;

(p) I add that no concern over privacy or harassment has been expressed in that letter or affirmation;

(q) Importantly, even after that possibility had been raised, no step had been taken to amend the Writ until months later. And as we shall see, even that belated amendment is problematic;

(r) Mr Cheung in this regard relies on the costs order made by Master Hew, that it was made upon Lims/Firm’s proposal through counsel, and that they had not appealed against that order;

(s) Again, why Lims/Firm proposed that order, and why they did not appeal against it are not subject to any explanation from Mr Lim. As Mr Siu submitted during the hearing which I accept, there can be all sort of reasons as to why a party does not appeal against an adverse order;

(t) That “possibility” is at best an asserted one, which is not in my view established by evidence, direct or inferential;

(u) Mr Cheung relies on Re Like Grand. That case does not assist P. In that case, as explained by Kwan J at §15, the petitioners there did have a permanent residential address in Hong Kong, the addresses had been known to the respondents for some time, and that the respondents had no apparent reason to believe that the petitioners might no longer have resided there. It was on such facts that the learned judge said at §15(4) that “I cannot rule out the possibility that the petitioners have not been properly advised by their former solicitors when asked to provide their addresses”;

(v) In considering whether P held at any time that so-described “genuine, albeit misguided, belief”, the overall facts and circumstances are highly relevant. I have set them out above. I pull the threads together as follows:

(i) The Pilkem Street Address was put down in the Writ as P’s address;

(ii) Beyond Mr Lim subsequently in Lim/Aff2 asserting that P “was/is given access to and use the offices of my firm”, no particulars of such access or use has been provided;

(iii) Master A Ho raised during the call-over hearing the issue of P’s residence. That was raised in the context of an application for security of costs being pending. The significance vis-à-vis O.23 r.1(1)(a) must be clear to all. Indeed, P’s legal representative said that that issue would be dealt with in the affirmation to be filed. It was not, and has never been;

(iv) TNT&L’s letter of 7 April 2025 (the day before the hearing before Master Hew) was ignored;

(v) Despite admission before Master Hew of the mis-statement, and the running of the Wrong Advice Argument, no amendment had been made until months later. The implication is that even upon knowledge that P should have provided in the Writ her residential address and that the Pilkem Street Address was not, nothing had been done till 18 June 2025;

(vi) TNT&L’s letter of 14 April 2025 was again ignored;

(vii) Then came the amendment to the Writ on 18 June 2025. The lateness was unexplained. The nature of the address has not been explained or confirmed. There is on the face of the amended Writ just a bare substitution of addresses, and nothing else;

(viii) I regard as telling that P has chosen not to address the issue as to whether she is ordinarily resident in Hong Kong. The clear implication is that she wants to avert any application for security for costs by D. The highly unusual application to stay the present action which she herself started is also telling. She chose not to discontinue or withdraw the action herself, but sought to stay it. I accept Mr Siu’s submissions that she did not do so because of the costs consequence. The question of costs has clearly been in her mind.

42.  On the facts of the case, and in all the circumstances:

(a) I do not accept that P has established that any wrong legal advice had been provided to her on her duty to provide address on the Writ, or that she had any desire on her part to protect her privacy or avoid harassment, or that she mis-stated her address on the Writ because of that desire as misguided by any erroneous legal advice;

(b) P has failed to satisfy this court that at any point of time, she made the mis-statement innocently, or with no intention to deceive, or she made the mis-statement innocently and with no intention to deceive;

(c) There is no need for me to make any positive finding. But if necessary, and on the overall circumstances of the case, I am of the view that the evidence and overall facts suggest that P mis-stated her address in the Writ with the intention of deceiving D as to her actual residential address so as to avert any adverse costs implication, and that that mis-statement has never been satisfactorily corrected even up to now with the late and highly ambiguous and unsatisfactory amendment to the Writ;

(d) I hold that P has not been able to invoke O.23 r.1(2).

43.  On the above basis, my discretion to order security for costs against P is engaged.

44.  On the same overall circumstances as I have explained and set out above, and which I have had regard to, I am of the view that it is just to order P to give such security.

G. Quantum

45.  D seeks security in the sum of HK$1,270,600 up to the stage of witness statement.

46.  Apart from asserting that the volume of documents in the present case does not justify the number of hours estimated by D, Mr Cheung has not made any substantive submissions against the same.

47.  P has previously made reference to her application for stay, and requested the court to take that into account when assessing the quantum. That application has however been dismissed with indemnity costs.

48.  I have considered the costs estimates produced[8]. I am satisfied that the amount of the total estimated costs is a reasonable one.

H. Overall conclusion

49.  For the reasons set out above, I allow the appeal. I set aside Master Hew’s order of 8 April 2025 (including the costs order for avoidance of doubt). I order P to pay security for costs in the sum of HK$1,270,600.

50.  In relation to the precise terms of the payment and consequential directions:

(a) I am prepared to give P 28 days to meet the payment. §1 of the SC Summons is modified accordingly;

(b) Save that modification, I make an order in terms of §§1 to 4 of the SC Summons.

I. Costs

51.  I have considered whether any costs which P shall bear in relation to the SC Summons should be on an enhanced basis. But in the end, I at this stage am of the view that the conduct of P’s opposition, and in particular the absence of evidence on the contested issues and the lateness of the amendment to the Writ, though verges on being unreasonable, may not by themselves justify any indemnity costs. I at this stage made the costs order nisi that P shall bear the costs of and occasioned by the SC Summons, both here and below, with certificate for counsel, to be summarised assessed. Any application for variation may be made by letter to this court within 14 days from the date of handdown, upon receipt of which further directions will be given. In the absence of any application for variation, D shall within 21 days from the date of handdown lodge her statement of costs, P to lodge her statement of objection within 14 days upon receipt, and P to lodge her reply within 7 days thereafter. This court will then carry out summary assessment on the papers.

Mr Albert Cheung instructed by LIMS Solicitors, for the Plaintiff

Mr Stephen Siu and Mr Felix H.Y. Tang instructed by Tung, Ng, Tse & Lam, for the Defendant