Shove Sherpa v. The Director of Immigration

HCAL 6/2014

[2018] HKCFI 1856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 6 OF 2014

___________________

___________________

Before: Hon Zervos JA in Chambers

Dates of Written Submissions:  18 and 25 July 2018

Date of Decision: 7 August 2018

________________

D E C I S I O N

________________

1.This decision addresses the question of costs arising from the judgment I handed down on 31 May 2018, dismissing the applicant’s application for judicial review.

2.The applicant mounted a legal challenge as to his residential status in the Hong Kong Special Administrative Region (HKSAR) by seeking to establish that he had right of abode and could not be the subject of deportation, having been issued with a deportation order after a string of criminal convictions. 

3.The applicant has failed in his quest to establish a right of abode in the HKSAR on legal and constitutional arguments, and the opposing parties therefore request their costs in accordance with the general rule that costs follow the event.  See Order 62 rule 3(2), 5 and 7 of the Rules of the High Court, Cap 4A.  See also Wong Kam Tong v Tin Shing Court, Yuen Long (IO) (No 2) [2012] 2 HKLRD 1128, at paragraphs 10 to 13.

4.Mr Stephen Tang, for the applicant, requests that the Court make no order as to costs.  He argues that the Court may depart from the general rule where the proceedings have been brought to advance a legitimate public interest. 

5.A court may depart from the general rule in the exercise of its discretion, but only if there is a good reason for doing so.  One such reason is the public interest exception.  This will normally arise where it is desirable in the public interest to clarify an important issue in a case, so that on the question of costs the court may order that the parties bear their own costs.  See Leung Kwok Hung v The President of the Legislative Council of the HKSAR (No.2) (2014) 17 HKCFAR 841, at paragraphs 14 and 17; Designing Hong Kong Limited v Town Planning Board [2018] HKCFA 16, at paragraph 13; and Chu Hoi Dick & Anor v Secretary for Home Affairs (No.2) [2007] 4 HKC 428, at paragraphs 28 to 30. 

6.In Chu Hoi Dick, Lam J (as he then was) reviewed the costs jurisprudence of public interest judicial review and formulated three criteria that should be addressed regarding costs in public interest litigation.  It will be necessary for the applicant to show that he brought proceedings to seek guidance from the court on a point of general public importance for the benefit of the community as a whole, that the judicial decision had contributed significantly to the proper understanding of the law in question, and that the applicant had no personal private gain in the outcome.  Before coming to a final decision on costs based on these criteria, consideration should also be given to any other relevant factors, including those that may have a countervailing effect.  See Leung Kwok Hung, at paragraph 17(10); and Chu Hoi Dick, at paragraph 30.

7.Critical to the question of costs are the merits of the case.  This is a highly relevant factor, for however important the subject of the litigation or any particular legal point may be, if the issues raised have little merit, a court in such circumstances would normally not make any order other than costs following the event.  See Designing Hong Kong Limited, at paragraphs 16 to 18.

8.Mr Tang argues that the Court in granting leave to the applicant in relation to the constitutional argument, found that it was reasonably arguable with reasonable prospects of success and therefore it cannot be said that the case had little merit.  The merits test in granting leave is different to the one when deciding a question of costs.  They are different because they take place at different stages, for different purposes and in different circumstances.  As this Court’s decision reflected, the constitutional argument was eventually revealed to have little merit, even though initially it appeared on its face to be reasonably arguable. This is not surprising because it will normally be after a full hearing that a court can fully ascertain the merits of the application.  In any event, I have come to the view that I should not make my decision on the question of costs on this factor alone, and will go on to consider the question in relation to public interest litigation.

9.Mr Tang argues that the three criteria formulated in Chu Hoi Dick have been satisfied.  

10.Of the first criterion, he submits that the applicant brought the proceedings to seek guidance from the Court on a point of general public importance.  He points out that the litigation was for the benefit of the community as a whole, and that there are a certain number of non-Chinese permanent residents who used to enjoy the right of abode but had not been able to acquire it since voluntary departure from Hong Kong after 1997.  He further points out that the circumstances of the applicant was not a single case, but rather a situation that is faced by a large number of people.

11.Of the second criterion, he submits that the proceedings have significantly contributed to the understanding of the law in relation to the right of abode of non-Chinese nationals which has only been the subject of a few court decisions.  However, those few court decisions, critically addressed the central issue that was being argued by these proceedings, namely providing interpretation and definition of Article 24 of the Basic Law.  He adds that in the present proceedings, the applicant sought guidance from the Court to clarify the validity of paragraphs 6 and 7 of Schedule 1 to the Immigration Ordinance, Cap 135.  Whilst a challenge was mounted in relation to these two paragraphs, it was never destined to come to light because of the authority on Article 24. 

12.Of the third criterion, he submits that the applicant had no private gain in the outcome of the proceedings.  He argues that the applicant was seeking the restoration of rights that he had prior to 1 July 1997 which were removed by the 1997 Immigration Ordinance.  Despite how the arguments were crafted in these proceedings, it seems that they were primarily focused in finding a way to avoid the deportation order that had been issued against the applicant. He submits that even if the Court was to conclude that the applicant had a private interest in the proceedings, it was outweighed by its general public importance in relation to the right of abode of a large number of people.

13.I agree with the submissions of Ms Sit that the applicant does not satisfy the public interest exception to disturb the usual order of costs following the event. 

14.First, as reflected by the decision of this Court, the merits of the application were not strong.  As indicated by this Court’s reasoning, the arguments advanced by the applicant did not pay heed to the clear wording of Article 24 of the Basic Law and the relevant provisions of the Immigration Ordinance, as well as the guidance laid down in various authorities from the Court of Final Appeal concerning the exhaustive nature of Article 24 in respect of the categories of permanent residents with right of abode in the HKSAR. 

15.Secondly, the application was not brought for the purpose of seeking guidance of the Court on the matter of general public importance on the question of right of abode.  It would appear that the application was engineered for the applicant’s private interest in asserting right of abode so as to avoid the consequences of a deportation order that had been issued against him.  This was evidenced by the inordinate delay occasioned in bringing on these proceedings, which as pointed out by Ms Sit, only came about when the applicant was facing imminent risk of deportation and was therefore really directed at the applicant’s private interest and not the public good. 

16.Thirdly, the application did not turn on the question of law of general public importance for the constitutional argument arose only because of the unique circumstances of the applicant who only enjoyed right of abode in Hong Kong prior to 1997, but had not been able to acquire right of abode in the HKSAR after 1997 due to his personal circumstances, namely his voluntary departure from Hong Kong and imprisonment while present in Hong Kong as a result of his criminal convictions. 

17.Fourthly, there has been undue delay in the part of the applicant in circumstances where the relevant parties have been fully vindicated by this Court’s decision, which noted that every effort had been made by the relevant government bodies to accommodate and assist the applicant in his dealings with them. 

18.In the circumstances, there is no basis to depart from the general rule, particularly by invoking the public interest exception, and accordingly I order that the applicant pay the costs of the respondent and the 1^st and 2^nd interested parties, to be taxed if not agreed with certificate for two counsel. 

Mr Stephen Tang, instructed by Tso Au Yim & Yeung, assigned by Director of Legal Aid, for the applicant

Ms Eva Sit, instructed by Department of Justice, for the respondent and the 1^st and 2^nd interested parties