陳基裘 v. 香港政府發展局

HCAL 2253/2018 &
HCAL 3837/2019

[2021] HKCFI 335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2253 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3837 OF 2019

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D E C I S I O N

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1.At the hearing on 14 December 2020, the court granted leave to the Applicant to withdraw his application for leave to apply for judicial review in HCAL 3837/2019 (“the 2019 Application”), and proceeded to hear the application for leave to apply for judicial review in HCAL 2253/2018 (“the 2018 Application”). On 30 December 2020, the court handed down a written decision dismissing the 2018 Application. The court also made an order that there be no order as to costs of the 2 applications (“the Order”).

2.On 13 January 2021, the Putative Respondents issued a summons (“the Summons”) seeking (i) to vary the Order, or (ii) leave to appeal the Order to the Court of Appeal.

The application to vary the Order

3.The application to vary is made pursuant to Order 42, r 5B(6) of the Rules of the High Court (Cap 4A), or the inherent jurisdiction of the court.

4.In so far as the application to vary is made pursuant to Order 42, r 5B(6), the application is misconceived because the Order made by the court is not an order nisi.  Ms Chan submits that the Order should be regarded as an order nisi because the Putative Respondents did not have an opportunity to make detailed legal submissions on the issue of costs at the hearing on 14 December 2020.  This submission is rejected because the Putative Respondents had in fact made written submissions on the issue of costs and referred the court to some relevant authorities on the court’s exercise of discretion on costs in relation to an application for leave to apply for judicial review (see §95 of the Putative Respondents’ Skeleton Submissions dated 8 December 2020).  The court also invited the Applicant to respond to the Putative Respondents’ application for costs at the hearing on 14 December 2020, which the Applicant did.  In the circumstances, there is no basis to regard the Order as an order nisi.

5.In so far as the application to vary is based on the court’s inherent jurisdiction, I accept that the court does have power to alter the Order before it is drawn up and sealed (see Andayani v Chan Oi Ling [2000] 4 HKC 233).  However, such a course should not be lightly adopted, because the normal method of challenging an order made at first instance is an appeal instead of an application to vary.  In any event, I consider the Order to be correctly made, and decline to exercise my discretion to vary it.

The application for leave to appeal

6.Generally, an order on costs is a matter within the discretion of the court making the order.  The principles as to when the Court of Appeal would entertain an appeal on costs only are well settled, and do not have to be repeated here.

7.In relation to the Order made in this case, the principles for making an award of costs against an unsuccessful applicant in an application for leave to apply for judicial review are also well settled (see Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841). The Court of Final Appeal has made it clear that an award of costs against an applicant should not be made unless there are special or unusual circumstances which justify such an award, and the discretion of making an award of such costs should be sparingly exercised.  The Court of Final Appeal has also affirmed that the discretion on costs is a broad one.

8.Ms Chan submits that the court did not explain the reasons for refusing to make an order of costs against the Applicant, or consider or sufficiently consider the unusual or exceptional circumstances in the present case, thereby committing an obvious error in the exercise of its discretion on costs.  In Cheung Hing v Wah Fung Forest Resources Ltd [2017] 1 HKLRD 493, G Lam J held that the court did not have a general duty to give reasons in relation to costs order (at §6).  In any event, the relevant principles on when it would be justified for the court to order an unsuccessful applicant for leave to apply for judicial review to pay costs were very well settled.  Leung Kwok Hung was also cited by leading counsel for the Putative Respondents in his Skeleton Submissions.  I do not believe that there could have been any real doubt that the court made the Order because it did not consider that there were sufficiently special or unusual circumstances in this case to justify an award of costs being made against the Applicant.

9.Ms Chan submits that there are special or unusual circumstances in the present case, including:

(1)     the absence of merits in relation to the 2018 Application, as shown by the fact that the court rejected all 4 grounds of judicial review;

(2)     the Applicant had effectively a hearing on the merits in relation to the 2018 Application;

(3)     the Putative Respondents attended the oral hearing upon the court’s directions and provided substantial assistance to the court;

(4)     the Applicant’s substantial delay in making the 2018 Application;

(5)     the Applicant himself took the initiative to apply to withdraw the 2019 Application; and

(6)     the Applicant waited until the last moment to withdraw the 2019 Application.

10.I accept that the matters referred to in (1), (2), (3) and (4) above are factors relevant to the court’s exercise of discretion on costs (see Leung Kwok Hung, at §17(4) and (5)).  The relevance of the matters referred to in (5) and (6) above is less clear, because an applicant who chooses to withdraw his application should not be in a worse position vis-à-vis someone who persists with, and eventually fails in, his application.  If the application has plainly no merits, that is already a factor which the court may take into account in the exercise of its discretion on costs.

11.In any event, the factors mentioned above, including (5) and (6), are not conclusive.  A significant consideration is the background circumstances leading to the decision under challenge.  The present case arose out the Government’s decision to recover lands in the New Territories for redevelopment which affected the homes of many residents.  Granted that the relevant structures (namely, 寮屋) might have been erected contrary to the terms of the relevant Government leases, or on Government land, it is a fact that many such structures existed and were recognised and registered by the Government.  I appreciate that the Applicant moved to a public housing unit in 2015.  However, given that the Applicant had been in occupation of his 寮屋 which he erected on land leased from a landlord since the 1980s, his grievance that he (and others occupants of 寮屋) did not receive proper compensation is understandable.

12.The nature of the decision under challenge is a material consideration in the court’s exercise of discretion on costs.  The present case is obviously different from other cases referred to by Ms Chan where the court made a costs order against the unsuccessful applicant for leave to apply for judicial review, eg Lin Guifei v The Secretary for Home Affairs [2020] HKCFI 2888 concerned an application seeking to challenge a decision refusing to grant a mahjong/tin kau licence; Wong Wing Wah v Collector of Stamp Duty [2021] HKCFI 11 concerned an application by a person who purchased a residential property as trustee for another person seeking to challenge the decision of the Collector to charge Buyer’s Stamp Duty on the relevant agreement for sale.  Anyhow, the exercise of the court’s decision on costs in any given case depends on the particular facts and circumstances of that case.  Once the basic principles are identified, it is not very helpful to refer to how the court actually exercised its discretion on costs in any particular case.

13.In the exercise of the discretion on costs, the court is also entitled to take into account the personal circumstances of the applicant (who is 73 years of age and works as a farmer, although he complains that his ability to farm the land has been substantially affected by the redevelopment works), whether he is legally represented, whether his grounds of judicial review are frivolous or vexatious (which I do not consider to be the case here), and such other circumstances as the court may consider to be relevant.  The Applicant presented his arguments in a measured and reasonable manner, and did not make any extravagant claims or allegations (which this court receives from time to time).  The fact that the Applicant took the initiative to withdraw the 2019 Application, albeit at a late stage, also shows that the Applicant did seriously consider the viability of his applications, and did not unnecessarily waste the time and resources of the Putative Respondents and the court.

14.Ultimately, the question for the court in this case is whether there exist sufficiently “special or unusual circumstances” which justify an award of costs being made against the Applicant.  I am not so satisfied having regard to the overall circumstances of this case.

15.In all, I am not persuaded that the proposed appeal has a reasonable prospect of success, and am not prepared to grant leave to appeal.

DISPOSITION

16.The Summons is dismissed.  The Applicant has informed the court that he will not be seeking costs should the court dismiss the Summons.  According, I make no order as to costs of the Summons.

17.In view of the technical nature of the issues considered in this decision, it is written in the English language.  If either party wishes to have a Chinese translation of the decision, an application may be made to this court.

The Applicant, acting in person

Ms Tess Chan, Senior Government Counsel of Department of Justice, for the Putative Respondent in both cases