郭卓堅 v. 林鄭月娥特首連同行政會議成員

HCAL 453/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 453 OF 2017

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Before: Hon Chow J in Court

Date of Hearing: 31 October 2017

Date of Decision: 6 November 2017

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DECISION ON COSTS

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1.On 27 September 2017, this court handed down its decision dismissing, inter alia, Mr Kwok’s application for leave to amend his Form 86 and his application for leave to apply for judicial review. The court also made an order nisi that Mr Kwok was to pay the putative respondent’s costs of resisting those applications, to be taxed if not agreed with certificate for two counsel.

2.On 10 October 2017, Mr Kwok applied by summons to vary the order nisi in order to seek, instead, an order that “there be no order as to costs”.

3.The application is opposed by the putative respondent.

4.The applicable principles for determining the question of costs at first instance where there is an unsuccessful application for leave to apply for judicial review are well settled, and can be found in the judgment of the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841.  The following passages in that judgment are relevant for the present purpose:-

“11 Applications for leave to apply for judicial review are made ex parte. Ordinarily, such applications are dealt with on the papers and therefore do not lead to costs being incurred by any party other than the applicant. Even if the applicant requests an oral hearing in case the judge dealing with the leave application is minded to refuse leave and the judge directs such a hearing, the hearing remains ex parte and no costs will be incurred by any party other than the applicant. Sometimes, the judge himself may direct an oral hearing on his own motion if he requires further information or submissions from the applicant. Again, if so, the hearing will normally remain ex parte.

12 The position is less straight forward when a putative respondent or putative interested party appears at a contested leave application. Nothing in the rules prevents the court from hearing the putative respondent or putative interested party before deciding whether to grant leave. This may happen either on the application of the party seeking to be heard or at the court’s invitation. When another party other than the applicant appears and the application for leave is refused, the court may be faced (as the courts below were here) with an application for costs.

13 There are clearly competing considerations and a balance to be struck. On the one hand, applicants seeking leave to apply for judicial review should ‘on the whole, [be] able to seek relief without fear, if permission was refused, of being saddled with the respondent’s costs at that stage.’ Equally, the imposition of a liability to bear a respondent’s costs should not become a deterrent to a litigant’s right to have access to the courts and care must be taken to ensure that costs ‘are not disproportionately inflated by the involvement of the other parties at the permission stage’. This Court has also recognised that the character of judicial review proceedings to vindicate the public interest and the public importance of a case may be proper matters to take into account when exercising the discretion as to costs.

14 On the other hand, the principle that a successful party in litigation is entitled to an award of costs in his favour is one grounded in reasons of fairness and policy. When a party is put to the expense of responding to a claim in a court of law and prevails, it is only fair that he should be compensated for his expenditure. Equally, compensatory costs orders have long been part of our legal system and they serve to give claimants pause for thought before embarking on ill-conceived or unmeritorious litigation.

17 The present case therefore provides a useful opportunity for the Court to state the principles to be applied in relation to the costs of opposing parties in unsuccessful applications for leave to apply for judicial review.

The basic principle at first instance

(1) The basic principle remains that costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant. Notwithstanding the guidance that follows, there may be exceptional cases in which the discretion, which is a broad one, may be properly exercised otherwise than it would in other cases.

(2) Since applications for leave to apply for judicial review are, by the rules themselves, meant to proceed on an ex parte basis, the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent or putative interested party unless there are special or unusual circumstances which justify such an award. The discretion of making an award of such costs should be sparingly exercised.  Good reason will therefore be required in order for the court to make an order in relation to these costs against an applicant.

(3) There is no definitive list of reasons that may justify an award of costs against an applicant and in favour of a putative respondent.  As already indicated, the discretion as to costs is broad.  All facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.

(4) Without limiting what the court will take into account, it will certainly be relevant to focus on the reason that has led the opposing party to attend at the hearing, whether that party’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application, always bearing in mind that the context is the end result that the court has refused to grant leave to apply for judicial review.

(5) By way of example of these particular considerations: if the putative respondent or putative interested party has attended at the invitation of the court, the reason why the court has considered that party’s presence necessary will be relevant; so too, if the opposing party’s presence at the hearing may have been necessary because of an application for interim relief; if an application was thoroughly ill‑conceived or unmeritorious, this may be a weighty factor justifying an adverse costs order; similarly, if it was so frivolous or vexatious, or motivated for a tactical purpose indicating bad faith; where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing.  These considerations may or may not justify a costs order in favour of a putative respondent and it is important to stress that the ultimate decision remains in the discretion of the judge.”          

5.On behalf of Mr Kwok, Mr Lee stresses the undesirable deterrent or chilling effect, not necessarily on this particular applicant but potentially on other applicants in future applications for judicial review, of an adverse costs order being made against Mr Kwok in the instant application, the character of judicial review proceedings as being for the vindication of the public interest, as well as the public importance of the present case.  He places emphasis on the “general rule” that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are “special or unusual circumstances” which justify such an award, and that the discretion of making an award of such costs should be “sparingly” exercised.  He also submits that the examples mentioned in paragraph 17(5) of the judgment of the Court of Final Appeal in Leung Kwok Hung are just “examples” which should not be elevated to a status above the general rule.

6.I accept these general points made by Mr Lee, subject to the following observations:-

(1) The potential deterrent or chilling effect of an adverse costs order should not be over-stated.  From this court’s experience, in most cases where the court invited the putative respondent to attend the hearing of an application for leave to apply for judicial review, the applicant was legally aided. The existence of a generous legal aid scheme in Hong Kong has, to a large extent, ameliorated the potential deterrent or chilling effect of an adverse costs order being made against an unsuccessful applicant in an application for leave to apply for judicial review.  Also, an adverse costs order made against an unsuccessful applicant in a substantive application for judicial review (as opposed to an application for leave to apply for judicial review) may equally be said to have a deterrent or chilling effect on other applicants in future applications for judicial review, but that has not been considered to be a good ground in itself not to make a costs order against the unsuccessful applicant.

(2) Although the Court of Final Appeal said in paragraph 17(2) of its judgment in Leung Kwok Hung that the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are “special or unusual” circumstances justifying such an award, the last sentence of that sub-paragraph makes it clear that what is required to justify a departure from the general rule is “good reason” to make an order of costs against the applicant.

(3) Ultimately, the question of whether an unsuccessful applicant in an application for leave to apply for judicial review should be ordered to pay the costs of a putative respondent involves an exercise of judicial discretion which can only be carried out having regard to the specific facts and circumstances of the case in question.

7.In the present case, I consider the following factors to be significant in the exercise of the court’s discretion on costs.

8.First, the putative respondent attended the hearing for the leave application at the invitation of the court.  As I mentioned in the course of the hearing, the invitation was made because of the public importance of the case and I considered that I should hear both parties before making a decision on whether leave to apply for judicial review should be granted.  In view of the public importance of the case, it must, or should, have been within the reasonable contemplation of Mr Kwok that the court would likely direct an oral hearing of the leave application and invite the putative respondent to attend the hearing to render assistance to the court.

9.Second, the putative respondent’s attendance at the hearing on 22 September 2017 has, as a matter of fact, been of great benefit the court in determining the leave application. Although the issue of maturity was also addressed in the written and oral submissions made on behalf of Mr Kwok (and the court acknowledges its indebtedness to Mr Lee for the assistance rendered on this issue), the court’s understanding of the relevant legal principles and ability to apply those principles to the circumstances of the present case were considerably enhanced as a result of having the benefit of considering competing submissions from both sides.  But for those competing submissions, it was unlikely that the court could have rendered its written decision within a short time of the completion of the oral hearing.

10.Third, the court’s ultimate conclusion was that Mr Kwok’s challenge of the CEIC Decision was clearly premature such that his leave application should be rejected.  The present application can, I consider, properly be characterised as being “thoroughly ill‑conceived”.

11.Mr Lee submits that a relevant factor in favour of making no order as to costs against Mr Kwok lies in the fact that there was another application by two legally aided applicants (Messrs Lui and Li) who advanced precisely the same grounds for seeking leave to apply for judicial review of the CEIC Decision.  Mr Lee says that the fact that legal aid was granted to those applicants shows that the Director of Legal Aid was satisfied that the grounds relied upon by them (and therefore the grounds relied upon by Mr Kwok) were reasonably arguable.  I do not consider the existence of that other application relying on the same grounds to challenge the CEIC Decision to be a relevant consideration, just as it would not be a relevant consideration that (i) Messrs Lui and Li were pursuing their application which may mean, arguably, that there was no need for Mr Kwok to pursue his own application, or (ii) two other applicants (Messrs Tsang and Cheung) decided not to pursue their respective applications shortly before the hearing.  In my view, the question of whether Mr Kwok should be ordered to pay the costs of the putative respondent in the present application should be considered on its own merits and not be influenced by the other applications.

12.In all the circumstances, I consider that there are good reasons to depart from the general rule of making no order as to costs against Mr Kwok who was unsuccessful in his application for leave to apply for judicial review.  Accordingly, his summons dated 10 October 2017 is dismissed with costs to the putative respondent, to be taxed if not agreed.

13.Lastly, it remains for me to thank counsel for their assistance rendered to the court.

Mr Martin Lee, SC, Ms Isabel Tam and Mr Duncan Ho, instructed by Ho, Tse, Wai & Partners, for the applicant

Mr Abraham Chan, SC, instructed by Department of Justice, for the putative respondent