Case Document

100%Judiciary

HCAL 4/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 4 OF 2016

____________

BETWEEN
	WONG CHUN TAK	Applicant
	and
	THE REGISTRAR OF HIGH COURT	Putative
		Respondent
	and
	DIRECTOR OF LEGAL AID	Putative
		Interested Party

____________

Before: Hon Au-Yeung J in Chambers

Date of Hearing: 11 May 2016

Date of Decision on Costs: 13 May 2016

________________________

DECISION ON COSTS

________________________

1.This is a hearing on costs pursuant to my Decision dated 25 April 2016 (“the Decision”) dismissing the application for leave to apply for judicial review. The same abbreviations in the Decision are adopted here.

2.The applicant opposes costs. The bulk of his 24-page written submission contains re-run of arguments on the merits of the leave application, which I need not consider. Having sifted through those 24 pages, the following grounds in opposition are material for consideration of costs:

(a)  That the applicant acted in person throughout. He had no income as he is aged 66.

(b)  That the court only invited the putative respondent (Registrar) to give an initial response but it was the DOJ who eventually filed the Initial Response on behalf of the putative interested party (DLA).

(c)  That DLA was present with the indulgence of the court, well knowing that the applicant (who had passed the means test for eligibility to legal aid) had no means to bear any uncertain costs liability. DLA should prepare her Initial Response at her own risk as to costs. DLA did not warn the applicant that he might bear costs if his leave application was unsuccessful.

(d)  That if the court had informed the applicant that costs would be imposed on him if no leave was granted, he would have withdrawn Form 86 immediately or retreated from accessing to justice.

(e)  Clearly the Registrar’s Initial Response which the court anticipated differed from DLA’s. The former should be a simple short answer without any costs implication as the transcript of hearing before the Master would have explained the facts leading to the Master’s decision. The transcript corroborated what the applicant said. On the other hand, DLA’s Initial Response mainly argued law which took more hours to prepare but without affirmation of fact to support. DLA’s Initial Response wanted to argue away her Wednesbury unreasonableness and to hide the Master’s failure to do the “fact-solving promise” with a view to underpin the procedural proprietary point.

(f)  The Initial Response of DLA should be found unnecessary and useless since it omitted to point out Master Chow’s error in not performing her “fact-solving promise”; and that DLA broke her prior undertaking not to put the 5^th Opinion before Master Chow.

(g)  The applicant had reasons to support the “hopefulness” of his leave application. He had no personal gain as he only aimed to recover compensation through access to court.

3.On quantum, the applicant complains about the costs incurred for legal research. He submits that the costs statement did not give a breakdown for the item of “professional work and communication”.

4.The court would only award costs against an unsuccessful applicant for leave where there are unusual or exceptional circumstances to justify doing so. Unusual circumstances are those that the court finds that there are “good reasons” to order costs, as opposed to the usual case of no order as to costs in an unsuccessful leave application. I am also guided by the non-exhaustive list of factors set out by Au J in Television Broadcasts Ltd v Communications Authority & anor, HCAL 3/2013, 22 July 2013 at §§6(1) to (7).

5.The court has power to order costs in favour of a putative interested party who appeared: Re Ho Mei Ling (No.2) [2012] 1 HKC400, §§29-30.

6.These are established principles. It is not necessary for the court or the putative parties to give any warning on costs before a leave application is dealt with. A litigant in person who runs a hopeless leave application can hardly complain about costs in the event he cannot get leave. It makes little difference that an applicant is of advanced age and limited means.

7.Further, it is plain that DLA would be affected if the applicant succeeded in his application for judicial review. DLA would have to grant legal aid or face another legal aid appeal. DLA had interest to make representation and her filing of the Initial Response was with the permission of the court. This fell within §6(4) of Television Broadcasts Ltd. Grounds (a) to (d) in paragraph 2 are unmeritorious.

8.With regard to ground (e), the Initial Response was helpful. It contained a succinct statement of law and identified the relevant parts of the transcript. DLA did not open up unnecessary dispute of facts and no affirmation was filed. That the Registrar did not appear meant that there was no duplication in the submissions made by the putative respondent and interested party to the court.

9.With regard to (f), these were matters going to merits of the leave application and not costs. In any case, the so-called “fact-solving promise” has been dealt with in paragraphs 18-21 of the Decision. The so-called “prior undertaking” did not exist. In the relevant letter of DOJ dated 14 May 2014, DOJ clearly stated that the 5^th Opinion was not relevant to HCAL 67/2014, not the present leave application in HCAL 4/2016.

10.With regard to (g), this was clearly a hopeless leave application. Before the JR Judgment, the applicant has had another legal aid application which was unsuccessful. The 5^th Opinion had highlighted many problems with the applicant’s underlying case which impacted on his legal aid application. The JR Judgment made clear directions for there to be a hearing de novo before Master Chow, who then applied the correct test to dismiss the LAA. The applicant had all the information necessary to enable him to properly assess the merits of the present leave application at the time when Form 86 was filed. No public interest was involved. The pursuit of the intended judicial review was purely for the personal benefit of the applicant.

11.I find there to be exceptional circumstances to order that costs should follow the event.

12.As to quantum, the court adopts a broad brush approach. The costs statement is sufficiently itemized. There is no requirement to give further breakdown. The costs for legal research were not just for the point on hearing de novo but other issues such as legitimate expectation and costs. The transcript was clearly relevant to enable the court to understand what happened before Master Chow.

13.The grounds relied on by the applicant are multifarious. His Form 8, supporting affirmation and written submissions were lengthy and repetitive. The court appreciates the assistance given by DOJ. I bear in mind that the nature of a leave requirement is to filter applications and avoid unnecessary costs.

14.With no disrespect to anyone, I order the applicant to pay costs of the putative interested party in the sum of $25,000.

15.I thank Miss Lai for her assistance.