Leung Chun Kwong v. Secretary for The Civil Service and Another

HCAL 258/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 258 OF 2015

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REASONS FOR DECISION ON COSTS

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1.The facts of this matter were set out in the written judgment of this court handed down on 28 April 2017 (“the Judgment”), and will not be repeated here. In the Judgment, the court found against the 1^st respondent, holding that the applicant was unlawfully discriminated against by the Benefits Decision based on his sexual orientation. In paragraph 95 of the Judgment, the court directed that the order to be made in this application should take effect only on 1 September 2017 given the implications of the Judgment on the administration of the CSRs in relation to spousal benefits by the 1^st respondent.

2.The 1^st respondent applied, by summons dated 17 August 2017 (“the Summons”), for an order that the time for the taking of effect of any order made in this application for judicial review, as provided for in paragraph 95 of the Judgment, shall be extended to the final resolution of the 1^st respondent’s appeal in CACV 126/2017 (“the Appeal”).

3.By consent of the parties, the time for the taking of effect of any order made in this application for judicial review was extended, on an interim basis, to 7 September 2017.

4.The applicant indicated that he would not object to the 1^st respondent’s application on condition that the 1^st respondent undertook to him and to the court that he would compensate the applicant and other similarly-situated affected civil servants for any consequential loss arising from the “stay”.  The 1^st respondent was not prepared to give the undertaking sought, but offered a revised form of undertaking (“the Revised Undertaking”) at the hearing on 7 September 2017.

5.In summary, the Revised Undertaking provides that (i) the 1^st respondent will reimburse the applicant for any loss of benefits and/or allowances to which he is otherwise entitled under the CSRs by virtue of the Judgment which is caused solely by the extension of time for the taking of effect of any order made in this application for judicial review from 1 September 2017 to the final resolution of the Appeal should it be dismissed, without prejudice to the 1^st respondent’s right to recovery of the reimbursements so made together with interest and costs if the judgments or orders adverse to the 1^st respondent in HCAL 258/2015 and CACV 126/2017 should finally be set aside or reversed, and (ii) the 1^st respondent will issue to all staff a circular or memo for the purposes of drawing their attention to the Judgment and this Order and notify them of an arrangement relating to the reimbursement and recovery of benefits similar to that applicable to the applicant.

6.On the basis of the Revised Undertaking, which the applicant was prepared to accept, I make an order in terms of paragraph 1 of the Summons.  Mr Marwah (for the applicant) then asked for the costs of the hearing on the basis that the applicant had asked the 1^st respondent to give the undertaking mentioned earlier by letter dated 4 September 2017, and the undertaking eventually offered by the 1^st respondent was broadly the same as that sought by the applicant.  On the other hand, Mr Ma (for the respondent) submitted that the costs should be in the cause of the Appeal. After hearing counsel, I made an order that the costs of the Summons, including the costs of the hearing on 7 September 2017, should be in the cause of the Appeal, with reasons to be given later, which I now do.

7.In the circumstances of the present case, I consider it to be plain that the extension of time sought by the 1^st respondent, namely, that the taking of effect of any order made in this application for judicial review should be extended to the final resolution of the Appeal, ought to be granted, for the following reasons.

8.First, although I have found against the 1^st respondent on the issue of discrimination in relation to the Benefits Decision, the 1^st respondent’s appeal is, in my view, reasonably arguable.

9.Second, I am given to understand that the Court of Appeal has expedited the hearing of the Appeal, and it has been fixed to be heard on 11 and 12 December 2017, ie a little over three months from today.  The Court of Appeal heard the appeal in QT, which raised similar issues of law, earlier in June this year.  The Court of Appeal will therefore be familiar with the issues raised in the Appeal.  As I understand it, the Court of Appeal will be giving its judgment in QT after the hearing of the present appeal.  In these circumstances, it is unlikely that there will be any substantial delay between the hearing of the Appeal in December and the handing down of the Court of Appeal’s judgment on the Appeal.  The further delay to the applicant regarding the date of commencement of receipt of spousal benefits, assuming that he should be successful in resisting the Appeal, is therefore unlikely to be substantial.  Mr Marwah says that the delay may be much longer if there is a further, final, appeal.  That is, however, a matter for the Court of Appeal or Court of Final Appeal to decide.

10.Third, the delay to the applicant regarding the date of commencement of receipt of spousal benefits should be looked at in context, bearing in mind the fact the applicant himself delayed in making the application for leave to apply for judicial review (see paragraph 93 of the judgment).

11.Fourth, it is clear that the Judgment will give rise to some far reaching implications.  As pointed out in the course of the hearing, although this action is strictly between the applicant on the one hand and the Government (through the respondents) on the other, as a matter of practical reality, it is to be expected that the Judgment, once it is given effect, will be applied not only to the applicant but also to other civil servants in a similar situation.  Considerable confusion and difficulties will arise if the Judgment is now given effect, only for it to be overturned by the Court of Appeal a few months later.  Consider, for example, the situation where the applicant, or some other civil servants in a similar situation, should decide to take advantage of housing benefits offered by the Government to “married” couples and move into departmental quarters provided by the Government, only to find a few months later that they will cease to receive the housing benefits because the Judgment is reversed by the Court of Appeal. Other serious consequences may also arise from a reversal of the Judgment in so far as it impacts on the operation of the regulation against double housing benefits applicable to a civil servant and his/her “spouse”, as mentioned in paragraph 17 of the second affidavit of Tse Wing Yee Winnie.  Further, there could be issues arising as to whether the Government is entitled to recover benefits given or made available to the applicant and his partner, or other civil servants in a similar situation, during the period between now and the handing down of the judgment of the Court of Appeal, and that could lead to further litigations.

12.For the above reasons, I would have granted the extension of time sought by the 1^st respondent in any event even if the 1^st respondent had not offered the Revised Undertaking.  I consider that the costs of the 1^st respondent’s summons, including the costs of the hearing on 7 September 2017, should be in the cause of the Appeal.  The applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Azan Marwah, instructed by Daly & Associates, assigned by Director of Legal Aid, for the applicant

Mr Johnny Ma, instructed by Department of Justice, for the 1^st and 2^nd respondents