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Audrey Chow Securities Ltd v Yung Lung Biu Albert And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date15 July 2009
Year2009
Judgement NumberHCA147/1998
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA000147/1998 AUDREY CHOW SECURITIES LTD v. YUNG LUNG BIU ALBERT AND OTHERS

HCA 147/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 147 OF 1998

_________________________

BETWEEN

AUDREY CHOW SECURITIES LIMITED Plaintiff
And
YUNG LUNG BIU ALBERT 1st Defendant
GOLDEN WELL INTERNATIONAL 2nd Defendant
INVESTMENT LIMITED
MA QUE YUAN 3rd Defendant
QUE YUAN INTERNATIONAL 4th Defendant
HOLDING (HK) LIMITED
FULTRON INVESTMENTS LIMITED 5th Defendant
RADIUS WIBOWO LIE 6th Defendant
TSE’S SECURITIES LIMITED 7th Defendant
_________________________

Coram : Before Master Levy in Chambers

Dates of Hearing : 14 May 2009 and 3 July 2009

Date of Handing Down Ruling : 15 July 2009

_____________

RULING

_____________

INTRODUCTION

1. The amount of costs to be allowed to a successful litigant in person (“LIP”) is governed by O.62 r.28A.Sub-rules (2) and (3) provide:

“ (2) The amount allowed in respect of any item shall be such sum as the taxing master thinks fit not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing master would have been allowed in respect of that item if the litigant had been represented by a solicitor.

(3) Where in the opinion of the taxing master the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he shall not be allowed in respect of the time reasonably spent by him on the work more than $200 an hour.”

2. Mr. Yung was a LIP for the most part of the present action that commenced in January 1998.The Plaintiff, a stocks and securities trading company, claimed against Mr. Yung of having allegedly made false representations in connection with some securities transactions conducted with the Plaintiff.The action was discontinued against him by a consent order dated 24 October 2007, and he was awarded costs of the action.

3. In his Bill of Costs to be taxed, Mr. Yung claims an hourly rate of $2,600, which is two-thirds of $4,000 – the reference hourly rate for a solicitor of seniority of 10 years or above.

4. The Plaintiff, the paying party, contends that Mr. Yung should only be entitled to $200 an hour in accordance with r.28A(3).

GROUNDS FOR CLAIMING TWO-THIRDS

5. As Mr. Yung was acting in person, I told him that – in order to enable him to claim an hourly rate of above the usual $200 for a LIP – he would need to file evidence to prove pecuniary loss.Consequently Mr. Yung filed one affirmation and one affidavit to prove his alleged pecuniary loss.Two further affidavits were subsequently filed without leave (and leave was only given at the hearing).

6. After the hearing was concluded, before the handing down of my Ruling, Mr. Yung (quite improperly I must say) sent a letter to me enclosing a list of his working hours with reference to his bill of costs and a witness statement of Chow Bai Wah Emily, a witness of the Plaintiff in this action.

7. Mr. Yung in his 1st Affirmation deposed that he was a self-employed investment adviser, and exhibited records from the Inland Revenue Department to prove that he had suffered pecuniary loss when handling the proceedings as a LIP.His personal income during the relevant years is:

Year

Annual taxable income($)

1997/1998

2,219,261

1998/1999

129,329

1999/2000

407,752

2000/2001

163,354

2001/2002

20,385

GROUNDS OF OPPOSITION

8. The Plaintiff filed an affirmation of Nicholas Lock (which I also granted leave at the hearing), and was represented by Miss Chan.The contentions can be summarised as follows:

(i) The proceedings involved other defendants.During the material period during which pecuniary loss was alleged, the proceedings mainly involved other defendants.

(ii) There was no correlation between the decline in income and the proceedings.

(iii) The total hours Mr. Yung had allegedly spent (which are calculated according to his bill of costs) only constitute a small percentage of his total working hours (assuming an average of 14 hours a day work of20 days a month)[1].

(iv) Alternatively, Mr. Yung’s hourly rate (according to the total hours he worked and his income reported for the year 1997/1998) is, at the most, only $661 per hour[2].

DISCUSSION

(A) LEGAL PRINCIPLES

9. Although Mr. Yung conducted the case as a LIP, he was able to refer to me two Hong Kong authorities in support of his arguments: R A Stegemann v Time Enterprises Publications Limited[3] , andAu Wing Lun v Tam Mei Kam & ors.[4]

10. Miss Chan has submitted 4 cases, one of which is the Chinese judgment of the Court of Appeal of 霍兆榮對廉政公署.[5]

11. I have considered the authorities of both parties, but take the view that the most relevant authority for the purpose of this determination is the Court of Appeal decision of霍兆榮.In it the Justices of the Appeal discussed at length (see p4E – p8C) the origin and principles of the UK’s equivalent of our r.28A with reference to the three English decisions of Mainwaring v Goldtech Investments Ltd. [1997] 1All ER 467, Buckland v Watts [1970] 1QB27 and Hart v Aga Khan Foundation (UK) [1984] 1All ER 239.

12. The Hong Kong Court of Appeal has adopted and applied the principles laid down in these English authorities.Hence, in the instant determination, I should also follow and apply the principles expounded in the Court of Appeal decision.

13. According to the principles established by the authorities in paragraph 11 above , Mr. Yung will bear the burden of proof in establishing his pecuniary loss by his affidavit evidence (see Mainwaring at 467 h-j).

(B) EVIDENCE ADDUCED

14. Since Mr. Yung was acting in person, I am prepared to take into account the attachments to the letter he sent (albeit improperly) to me after the hearing. As Mr. Yung has also enclosed a witness statement of this case for my reference, I would therefore also read the pleadings and witness statements in the case file in order to assist me to have a better understanding of this case as well as to ensure no relevant materials would be omitted from my deliberation.

(a) Source of Income

15. Regarding Mr. Yung’s income, according to his affidavit evidence, it was from his engagement as a “self-employed licensed broker in dealing with Securities, Commodities Forex as well as asset management accredit to Sincere Securities Limited (D7), Celestial Commodities Limited and Hong Kong Forex Investment Limited respectively.” (Mr. Yung’s 1st Affirmation, para. 3).

(b) Working Hours

16. So far as his working hours are concerned, Mr. Yung said that he “might as well working nearly around the clock.” (see Mr. Yung’s 2nd affidavit, para.4).

(C ) BURDEN OF PROOF DISCHARGED?

17. The above, by and large, is all the evidence there is in support of his application. Has Mr. Yung adduced sufficient evidence to discharge the burden?

18. The brief evidence shows that - notwithstanding ample opportunity having been given to him to file affidavit evidence to prove pecuniary loss- Mr. Yung has in fact given only piecemeal information of his earnings.

19. First, there is no information as to how his income from his...

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