Li Tang Shi v. Li Wai Kwong and Another

CACV000027A/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 27 OF 1969

-----------------

Coram: Rigby, S.P.J., Scholes, J. and Mills-Owens, J.

Date of Judgment: 13 December 1969

-----------------

JUDGMENT

-----------------

1. I have had the opportunity of reading the judgment of my learned brother Mills-Owens J., and I concur with his judgment that the appeal should fail, and also with his reasons therefor.

2. However, in regard to the cross-appeal by the Attorney General, the 2nd defendant, from the order made by the learned trial judge that the costs of the proceedings be paid by the two respondents, I have come to a different conclusion from my brother.

3. At the trial the plaintiff sought orders and declarations against the 1st defendant, and declarations against the 2nd defendant. The 2nd defendant saw fit to contest the making of the declarations against the 2nd defendant, and in the event declarations were made against the 2nd defendant, and the learned trial judge, following the usual rule that a successful party is entitled to his costs, awarded costs to the plaintiff against the respondents.

4. Crown counsel on behalf of the 2nd defendant has sought to show on the cross-appeal that the 2nd defendant cannot be liable for costs on account of the provisions of section 44 of the New Territories Ordinance, Cap. 97, and that the word liability therein covers costs, which is a liability, and he further contends that, there thus being an express enactment that the 2nd defendant is not liable to pay costs, the matter falls within section 17 proviso (b) of the Crown Proceedings Ordinance, Cap. 300, it following that the 2nd defendant cannot be liable to pay costs. Section 44 of the New Territories Ordinance is as follows:-

the relevant part appearing after the semi-colon. Section 17 of the Crown Proceedings Ordinance states:-

5. Counsel for the 2nd defendant conceded that it was not the intention of the Legislature, when enacting section 44 of the New Territories Ordinance, to exclude the Crown from liability for the payment of costs, for the very good reason that in those days, under the common law, the Crown could not in any event be liable for the payment of costs; (see Johnson v. The King⁽¹⁾); but he contended that the word "liability" in the latter part of section 44 was wide enough to include costs. It appears from the Ordinance that section 44 was enacted in 1910, and amended in 1911 and in 1912, which of course was long before the common law rule was changed by legislation.

6. In my view it is important to note in section 44 the words "in respect of any act done or entry made by such Land Officer or Assistant Land Officer in the course of his duty." Giving the words in the section their plain meaning, it seems to me that the meaning of the word "liability" in the section is restricted by the words I have stated in inverted commas, so that the liability excluded, is only liability in respect of any act done or entry made by such officer in the course of his duty; and of course, as is conceded by Crown counsel, it was never the intention of the Legislature, when enacting this section, to exclude costs for contesting an action.

7. Turning to section 17 of the Crown Proceedings Ordinance, no point has been taken in regard to proviso (a) of the section, and I therefore make no further comment on it, counsel for the 2nd defendant relying on the argument that the 2nd defendant cannot be liable for costs, and contending that proviso (b) of section 17 applies.

8. It is clear from the provisions of section 17, apart from the two provisos, that the Crown may be liable to pay costs in civil proceedings; however proviso (b) specifies, inter alia, that nothing in the section shall affect any enactment expressly relieving the Crown of the liability to pay costs. In my view section 44 of the New Territories Ordinance does not expressly relieve the Crown of the liability to pay costs. I also think that the word "expressly" should not be ignored, but given its normal meaning.

9. For these reasons, in my opinion, the 2nd defendant is liable to pay costs, but before I would support the order for the payment of the costs of the trial by the 2nd defendant in this case, I would like to hear argument on the question, in the circumstances of this case, as to whether the 2nd defendant should pay the whole or a portion of those costs of the plaintiff; which may have a bearing also on the costs of the cross-appeal.

13th December, 1969.

(1) (1904) A.C. 817.