Sino Bright Enterprises Co, Ltd v. Secretary for Justice and Others

HCAL 1060/2017

[2021] HKCFI 1395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1060 OF 2017

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.On 29 November 2019, this Court handed down judgment (the “Judgment”) in which:

(1)  the Applicant’s application for judicial review was dismissed; and

(2)  the Court made a costs order nisi that the costs of the proceedings be paid by the Applicant to the Respondent and the 1^st and 2^nd Interested Parties (“Interested Parties”), such costs to be taxed if not agreed (the “Costs Order Nisi”).

2.In making the Costs Order Nisi, no provision was made for certificate for two counsel.

3.On respectively 16 December 2019 and 19 December 2019, the Interested Parties and the Respondent wrote to the Court asking for the Costs Order Nisi to be varied.  In particular, the Interested Parties and the Respondent both sought an order that a certificate for two counsel be granted.

4.In response, the Applicant sought orders that:

(1)  The Costs Order Nisi be varied such that there be no order as to the costs of the Interested Parties; and

(2)  In the event that the Court finds that there should be an order as to the costs of the Interested Parties, the Applicant further opposes to the granting of a certificate for two counsel.

THE INTERESTED PARTIES’ COSTS

5.I agree that the Interested Parties should be awarded their costs for the following reasons:

(1)  First, the Interested Parties had an obvious interest in the eventual outcome of these proceedings.  The application for Judicial Review was on the decision of the Respondent on 20 October 2017 not to prosecute the Interested Parties under section 9(1) of the Prevention of Bribery Ordinance, Cap 201 and section 23 of the Theft Ordinance, Cap 210.  An unfavourable outcome in this case would have had a significant impact on the Interested Parties’ reputation, and it was therefore important for them to vigorously defend themselves against the possibility of an unmeritorious claim being brought against them.

(2)  Second, the Interested Parties’ interest in these proceedings were distinct from the Respondent’s.  While the Secretary for Justice was concerned primarily about the integrity of its prosecutorial discretion conferred by the Basic Law, the Interested Parties’ concerns were that serious allegations of criminal conduct had been advanced by the Applicant, and that the Interested Parties could face criminal proceedings in relation to such serious allegations should the Applicant succeed in its application.

(3)  Although the objective of both the Interested Parties and the Respondent were to defend the Applicant’s application for Judicial Review, their interests are plainly not identical for all intents and purposes.  I agree it was entirely legitimate for the Interested Parties to ensure that submissions were advocated which best represented their own interests.

(4)  Third, the Interested Parties are individuals faced with the prospect of criminal proceedings being brought against them had the Respondent been unsuccessful in these proceedings and accordingly given the gravity of the repercussions, should be entitled to separate representation (and the costs thereof): see The Secretary of State for the Home Department v Mental Health Review Tribunal and ‘P.H.’ [2002] EWCA Civ 1868 at [33].

CERTIFICATE FOR TWO COUNSEL

6.I agree that a certificate for two counsel is justified in the present case for both the Respondent and the Interested Parties for the following reasons:

(1)  It is clear that this case would give rise to significant implications on the prosecutorial role of the Secretary for Justice and the Director of Public Prosecutions.  As regard the Interested Parties, they are the former provisional liquidators of Nimble Holdings Company Limited formerly known as The Grande Holdings Limited.  As pointed out in paragraph 5 above, an unfavourable outcome in this case would have had a significant impact on the Interested Parties’ reputation, and it was therefore important for them to vigorously defend themselves against the possibility of an unmeritorious claim being brought.

(2)  I agree that this case involved complex legal issues.  Judicial review of a prosecutorial decision is rare and exceptional and hence “truly exceptional circumstances” must exist to justify judicial intervention.  Extensive research on legal authorities covering multiple jurisdictions has been carried out by counsel on difficult questions of law.

(3)  The Applicant had also instructed two counsel for the hearing.

7.For the reasons stated above, I would vary the Costs Order Nisi by ordering that a certificate for two counsel be granted to both the Respondent and the Interested Parties.

Ms Mavis Lam, instructed by Messrs K & L Gates, for the Applicant

Ms Cassandra Fung, GC, of the Department of Justice, for the Respondent

Messrs Lipman Karas, for the 1^st and 2^nd Interested Parties