Ho Chee Sing James v. Secretary for Justice

HCA 2161/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2161 OF 2012

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D E C I S I O N
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1.On 22 July 2015, in a reserved decision, I made an order in favour of the defendant striking out a major portion of the Amended Statement of Claim in these proceedings. When making that order I made a costs order in the following terms:

“There will be an order nisi that the costs of the action and the costs of this application be to the defendant in any event.”

2.By summons dated 3 August 2015, the plaintiff applies to vary the costs the order nisi to the effect that the costs of the action be in the cause, and that the cost of the defendant’s summons to strike out or stay the Amended Statement of Claim be to the defendant in any event.

3.The plaintiff accepts that the costs of the defendant’s summons to strike out should be to the defendant but points out that a claim made under section 20C(4) of the Prisons Ordinance remains extant and is yet to be tried.  The quantum of this claim is $1,350,000.  In the circumstances of this case it is necessary for that claim to go first to the Labour Tribunal which will determine whether the Tribunal will hear the matter or whether it is a matter which ought to be heard by the High court.

4.Consequently, the plaintiff says that it is not yet appropriate to determine questions of costs for that sole remaining part of the action, which may yet proceed in this court.

5.The defendant says that in the light of the finding that there was no reasonable cause of action for the claims (other than for the withheld emolument), the defendant is entitled to the costs of the parts of the Amended Statement of Claim that had been struck out.

6.There is merit in both arguments.

7.I am satisfied that the appropriate costs order is as follows: the plaintiff must pay the costs of the defendant’s summons filed on 29 April 2015, and the costs of those parts of the Amended Statement of Claim that have been struck out in any event.  The costs of the remaining part of the action are to be in the cause.

8.I reject the submission for the defendant that as the section 20C(4) claim has been held to be mere window dressing the defendant should be entitled to the costs of the whole claim.  In the light of the fact that that claim may be returned to this court for determination the question of costs on that part of the claim should await the ultimate outcome of the proceedings.

9.Both sides have succeeded in part on the costs argument.  There will be no order for costs on the costs variation summons.

Fung Wong Ng & Lam, assigned by Director of Legal Aid,for the plaintiff

Mr Eric Ko SGC, of Department of Justice, for the defendant