Re Hung Hing and 66 Others

HCAL 138/2014

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 138 OF 2014

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D E C I S I O N
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1.This is the application of the Director of Lands (“Director”) in respect of the costs incurred by her in the applicants’ application for leave to apply for judicial review (“Application”).  Pursuant to the directions of this court dated 11 February 2015 (“Directions”), an Initial Response was filed by the Director in respect of the Application.

2.There are 3 issues to be resolved.  Firstly, it is contended by the applicants that this court is now functus and has no jurisdiction to entertain the costs application because the order dismissing Application (“Order”), which did not provide for costs, has been sealed on 21 May 2015.

3.I agree with Mr Chan, appearing for the Director, that despite the sealing of the Order this court retains jurisdiction in this matter by reason of the “slip rule” : see Man Ping Nam v Man Fong Hang (No 2) (2007) 10 HKCFAR 140, at §§16-20.

4.I should say a few words about the sealing of the Order.  It was an administrative exercise.  Normally, the party entitled to an order will submit to the court’s clerk a draft order. Upon checking that the draft reflects the order made by the court, it will be approved by the clerk.  Thereafter, the party will be entitled to have the order sealed.  I have no doubt that this was what took place in this case.

5.The Application was dismissed on 12 May 2015.  The Director made her costs application on 18 May 2015 by letter.  That letter was copied to the applicants’ solicitors. Regrettably, in applying for the approval of the draft order on 20 May 2015, it was not pointed out by the applicants or their solicitors that there is a costs application on foot.  Plainly, the costs application has to be determined. Hence, directions for the filing of submissions were given by this court on 26 May 2015.  This court was not aware of the exercise for having the Order sealed because it was not involved.

6.I have no reason to believe that there was any foul play in this case.  However, one must learn from experience.  In the future, there would be an obligation on the applicant to alert the court’s clerk in respect of similar circumstances.

7.The second issue concerns the applicants’ contention that the Director is not entitled to make a costs application because she was not, for purposes of the Application, a party pursuant to s.2 of the High Court Ordinance, Cap 4.  With respect, this is misconceived because the Application was served on the Director pursuant to the Directions.

8.Finally, it is common ground that an exceptional case has to be demonstrated before the court would grant a costs order in favour of a putative respondent in connection with a leave application for judicial review : see Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841, §17.  Therefore, the issue is whether such a case has been demonstrated.

9.I agree with the Director that such a case has indeed been demonstrated. In particular, I take into account the following :

(1) There is no merit in the Application.  The appeal against the dismissal of the Application was rejected by the Court of Appeal on 17 September 2015;

(2) The filing of an Initial Response by the Director was nothing unusual bearing in mind the current practice.  The Initial Response was helpful to the court, not the least because it set out in full the material factual circumstances;

(3) The Application was advanced for financial reasons.  In doing so, the applicants sought to force the Government to dispose of public land in their favour.  Lack of merits aside, I do not believe that this was a proper use of the judicial review procedure.

10.For these reasons, I accede to the Director’s application and make an order that her costs of and occasioned by the Application, including this costs application, be borne by the applicants, to be taxed if not agreed.

Mr Ho Koon Ki Tommy, instructed by Wong & Poon, for applicants

Mr Anthony HK Chan, instructed by Department of Justice, for Director of Lands