Tang Hoi Sang and Others v. Director of Lands

HCAL 79/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2016

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DECISION ON COSTS

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1.The putative respondent has asked for her costs following the dismissal of the application for leave to apply for judicial review on 30 March 2017. The general rule is that an unsuccessful applicant for leave will not be ordered to pay costs unless there are special or unusual circumstances that justify an award: Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841 at §17.

2.For the reasons below, I consider that there are special circumstances in this case such that the applicants should be required to pay the putative respondent’s costs:

(1)  The challenge against Decision 1 was one and a half months out of time.  The putative respondent was entitled to oppose any extension of time.

(2)  It was clear that Decision 2 was not a legally determinative decision, and was both preceded and followed by proper s 6 notices which were not being challenged at all.  The application against Decision 2 was obviously futile.

(3)  The applicants contend that the putative respondent’s argument at the hearing did not add much to the Initial Response. On the arguments presented in the Initial Response, the grounds on which I eventually dismissed their application should already be clear to the applicants.  In the absence of any real answer to the points raised, the disputes about the facts could not assist the applicants.  The application was wholly without merits in law for the reasons explained in my decision, and the further pursuit of the application should be known to be hopeless, at any rate after the Initial Response if not before.

3.I would however exclude the costs of the hearing on 13 March 2017 which concerned the applicants’ application for leave to file further evidence.  It seems to me that on the stance taken by the putative respondent to that application their attendance was largely unnecessary.

4.There will therefore be an order that the applicants do pay the putative respondent’s costs of and relating to the application for leave to apply for judicial review after the Initial Response but excluding the costs of the hearing of the application to adduce further evidence on 13 March 2017.

Written submissions by Ms Lorinda Lau and Mr Forest Fong, instructed by Chow Wong & Lawyers, for the Applicants

Written submissions by Mr Anthony Chan, instructed by Department of Justice, for the Putative Respondent