Re David Perry, Qc

HCMP 751/2019

[2020] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 751 OF 2019

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DECISION ON COSTS

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1.By a judgment handed down on 10 July 2020 ([2020] HKCFI 1521), I allowed the applicant’s application for ad hoc admission in CACC 368/2016. The usual practice is to make no order as to costs of the application.

2.Both the applicant and the Bar Association agree that, following the usual practice, there shall be no order as to costs.  However, the Secretary for Justice seeks costs of and incidental to the adjourned hearing of the application dated 31 May 2019, although she customarily does not seek costs in admission proceedings as her role is to provide assistance to the court in the public interest: Re Robin Potts QC, HCMP 5047/2001, unreported, 19 December 2001, at [15].

3.As alluded to in [2] of the judgment, the applicant sought to rely on the proposed constitutional challenge to section 137(1) of the Crimes Ordinance, Cap 200.  The challenge was referred to in the joint certificate of counsel and the applicant’s written submissions lodged for the hearing.  But it had not found its way into the then Grounds of Appeal yet. The hearing on 31 May 2019 was then adjourned to enable the appellants to obtain the requisite leave from the Court of Appeal to raise it in the coming appeal.  Mr Jonathan Kwan, for the Secretary, submitted that in the circumstances the adjournment was caused entirely by the applicant’s fault for which he should bear the costs wasted.

4.As a preliminary point, Ms Catherine Wong, for the applicant, submitted that on a proper construction, the court’s power to grant costs in admission proceedings under rule 3(2)(b) of the Barristers (Admission) Rules, Cap 159AA, is only engaged if the application is dismissed, citing Re Perry QC [2016] 2 HKLRD 647, at [41] in support[1].  There is thus no power to grant costs to the Secretary where the application is successful.

5.I doubt if Ms Wong’s construction of rule 3(2)(b) is correct.  However, for present purpose, it is not necessary to determine the point.  Assuming that rule 3(2)(b) does not limit my jurisdiction on costs as contended by her, I do not consider it appropriate to depart from the usual practice of making no order on costs.

6.As pointed out by Ms Wong, the constitutional challenge had been raised as a matter of substance before the adjourned hearing.  The parties were quite ready to proceed with the application there and then.  I allowed the adjournment simply to ensure that the appellants would be able to raise the challenge at the appeal.  It did not materially affect the Secretary’s role of providing assistance to the court. Further, I did not allow the application purely because of the constitutional challenge.  I also allowed it on the unusual complexity limb[2]; the substantial impact limb[3]; and the CFA factor[4].  Having regard to the overall circumstances and how the application was disposed of, I do not see any sufficient basis for me to depart from the usual practice on costs.

7.In consequence, I will make no order as to costs of the application.

Ms Catherine Wong, instructed by Francis Kong & Co. for the applicant

Anthony Chiang & Partners, for the Bar Council of the Hong Kong Bar Association

Mr Johnathan Kwan, instructed by the Department of Justice, for the Secretary for Justice