Kwok Wing Hang and 23 Others v. Chief Executive in Council and Another

FACV Nos. 6, 7, 8 and 9 of 2020

[2021] HKCFA 11

FACV Nos. 6 and 7 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 6 and 7 OF 2020 (CIVIL)

(ON APPEAL FROM CACV NOS. 542 AND 583 OF 2019)

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FACV No. 8 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2020 (CIVIL)

(ON APPEAL FROM CACV NO. 541 OF 2019)

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FACV No. 9 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2020 (CIVIL)

(ON APPEAL FROM CACV NO. 542 OF 2019)

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Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Hoffmann NPJ

Date of Judgment: 22 March 2021

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JUDGMENT ON COSTS

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The Court:

1.In the Court’s judgment dated 21 December 2020 at [148], we made a costs order nisi “that the costs of these appeals be paid by the respective applicants to the Government” and invited the parties to make submissions in writing if they wished to seek any variation of that order.  That order nisi was made without the parties having made any submissions to the Court on the issue of costs and without consideration of the orders for costs that had been made in the courts below or the reasons for those orders.

2.Pursuant to the Court’s direction, the parties have now filed written submissions.  The applicants pray in aid the public interest litigation exception to the general rule that costs follow the event and essentially ask the Court to make no order as to the costs of the appeals, leaving the costs orders below undisturbed. The Government, on the other hand, invites the Court to make absolute the order nisi.

3.It is helpful to set out the costs orders that were made below to put in context the discussion of the parties’ submissions on costs.

4.The applicants, being largely successful at first instance, were awarded 80% of their costs by the Court of First Instance with a certificate for 3 counsel in HCAL 2945/2019 (brought by the applicant Kwok Wing Hang and 23 others) and for 2 counsel in HCAL 2949/2019 (brought by the applicant Leung Kwok Hung).

5.On appeal, the Government was mostly successful.  Costs submissions were considered by the Court of Appeal and it was concluded that the litigation fell within the public interest litigation exception so that the proper order was that there be no order for costs in “the KWH appeals” (i.e. the Government’s appeal in CACV 542/2019 and the applicant Kwok Wing Hang’s and others’ cross-appeal in CACV 583/2019) and in HCAL 2945/2019, and also no order for costs in “the LKH appeal” (i.e. the Government’s appeal in CACV 541/2019).  The costs order of the Court of First Instance in respect of HCAL 2949/2019 was left undisturbed because the appeal in CACV 541/2019 was only against the judges’ order allowing the judicial review on Ground 5B (“the s.5 proportionality ground”) on which the Government failed on appeal to the Court of Appeal and which it did not pursue in the CFA.[1]

6.The Government invites us to make absolute the costs order nisi at [148] of our judgment.  This was in response to the submissions from Kwok Wing Hang and his co-applicants and Leung Kwok Hung inviting us instead to make no order for costs of the appeals in the Court of Final Appeal and also to confirm the Court of Appeal’s costs orders for the intermediate appeals and in respect of the first instance proceedings.  The Government also submitted that, in confirming the costs order nisi, the Court should reflect that order by varying the costs orders in the courts below to reflect that outcome.

7.The applicants submit that this Court has no jurisdiction to deal with the costs below but there is no substance in this point.  Pursuant to s.17(2) of the Court’s founding ordinance,[2] this Court has jurisdiction to exercise any of the powers of the court from which the appeal lies and, where leave to appeal against a judgment has been granted, this necessarily includes a power to re-open the costs orders made by the courts below.

8.However, we are satisfied that the public interest litigation exception is properly invoked by the applicants so that the proper order is no order as to costs of FACV 6, 7, 8 and 9 of 2020 and that the Court of Appeal’s costs orders (in respect of the intermediate appeals and the first instance proceedings) should be confirmed. The reasons for this are simple:

(1)  These were clearly appeals of obvious general and public importance: see our judgment at [19].  Leave to appeal was granted to both the applicants and the respondents by the Court of Appeal to pursue the various points on which they had lost.  The grant of such leave clearly reflected the importance of the points of law and shows the case met the threshold test on the merits to engage the discretion to apply the public interest litigation exception: see Leung Kwok Hung v. President of the Legislative Council (No.2)[3] at [17(18)].

(2)  Applying the public interest litigation principle here: (a) the proceedings were clearly brought to test a rarely invoked emergency power, used for the first time since the coming into effect of the Basic Law, to respond to an occasion of serious danger and so the proceedings were self-evidently to seek the court’s guidance on a point of general public importance for the benefit of the community as a whole; (b) none of the applicants stood to gain any personal private gain from the outcome of the litigation; and (c) there was a real prospect of success (as demonstrated by the grant of leave to move for judicial review below and the grant of leave to appeal to this Court): see Chu Hoi Dick v Secretary for Home Affairs (No.2)[4] as approved in Leung Kwok Hung v President of the Legislative Council (No.2)[5] at [17(10)].

(3)  We consider that the Court of Appeal’s decision on costs, arriving at the same conclusion as to the applicability of the public interest litigation exception to the general rule that costs should follow the event, was correct.

9.We therefore now vary the costs order nisi and substitute instead the following orders as to costs, namely that:

(1)  There be no order as to costs in FACV 6, 7, 8 and 9 of 2020;

(2)  The order made by the Court of Appeal that there be no order as to costs in CACV 542/2019 and CACV 583/2019, including the costs in respect of HCAL 2945/2019, do stand;

(3)  The order made by the Court of Appeal that there be no order as to costs in CACV 541/2019, do stand;

(4)  The costs order made by the Court of First Instance in HCAL 2949/2019 be left undisturbed;

(5)  The applicant Leung Kwok Hung’s own costs be taxed in accordance with the Legal Aid Regulations.

Written Submissions by Ms Gladys Li SC, Mr Johannes Chan SC (Hon), Mr Earl Deng, Mr Jeffrey Tam, Mr Geoffrey Yeung and Ms Allison Wong, instructed by Ho Tse Wai & Partners, for the 1^st to 24^th Applicants (Appellants) in FACV 6 & 7/2020

Written Submissions by Mr Hectar Pun SC, Mr Lee Siu Him and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co., assigned by the Director of Legal Aid, for the Applicant (Appellant) in FACV 8/2020

Joint Written Submissions by Mr Jenkin Suen SC and Mr Mike Lui, instructed by the Department of Justice, for the 1^st to 2^nd Respondents (Appellants) in FACV 9/2020