Lam Ar Fu Peter v. Building Authority

CACV 68/2019

[2021] HKCA 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 68 OF 2019

(ON APPEAL FROM HCAL NO 2259 OF 2018)

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BETWEEN

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Before:  Hon Lam VP, Cheung and Au JJA in Court

Date of Judgment:  26 May 2021

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A.  INTRODUCTION

1.By a determination dated 18 January 2018 (“the Determination”), the Appeal Tribunal (Building) (“the Tribunal”) dismissed the applicant’s appeal against the relevant building older issued by the Buildings Authority relating to the applicant’s property. Further, by a decision dated 19 July 2018 (“the Costs Decision”), the Tribunal decided that the applicant shall pay the costs of the appeal to the Building Authority.

2.On 17 October 2018, the applicant applied for leave to apply for judicial review against the Determination and the Costs Decision.

3.By a decision dated 30 January 2019 (“the Judgment”), Chow J (“the Judge”) refused to grant extension of time to the applicant to apply for leave to judicially review the Determination[1].  He also refused to grant leave to the applicant to apply for judicial review against the Costs Decision.

4.The applicant sought to appeal against the Judgment. As the law stood at that time, leave was required to appeal against the Judge’s refusal to grant extension of time.  By a decision dated 9 April 2019 [2019] HKCFI 878, the Judge refused to grant leave.  On 10 September 2019, his renewed leave application was also refused by this court (Lam VP and Au JA) under CAMP 70/2019 [2019] HKCA 1019.

5.The present appeal deals with the applicant’s as of right appeal against the Judgment in relation to the Judge’s refusal to grant leave to apply for judicial review against the Costs Decision.  By a letter dated 7 March 2019, the applicant consented to have this appeal disposed on paper.

6.We now give our judgment[2].

B.  BACKGROUND

7.The present proceedings arise from the applicant’s unsuccessful appeal against a building order dated 10 December 2010 (“December 2010 Order”) issued by the Building Authority requiring the applicant to demolish an unauthorized structure in his property.  The Tribunal dismissed his appeal on 18 January 2018 and ordered the applicant to pay costs.  Following the applicant’s application to vary such costs order nisi, the Tribunal handed down the Costs Decision making the costs order absolute.

8.As mentioned above, the applicant later sought leave to apply for judicial review against the Determination and the Costs Decision. Insofar as the Costs Decision is concerned, the applicant argued in the court below that the Tribunal should not apply the “costs to follow the event” principle but ought to have adopted the “low costs regime” when dealing with appeals to the Tribunal by litigants in person.

9.After considering the applicant’s grounds of review and examining the Costs Decision, the Judge refused to grant leave to the applicant to judicially review the Tribunal’s Costs Decision as he concluded that the Tribunal had not committed any public law errors in exercising its discretion in ordering the applicant to pay costs.

C.  THIS APPEAL

C1.  Grounds of appeal

10.In his Notice of Appeal dated 12 February 2019, the applicant advanced some eighteen grounds of appeal.  He also lodged his lengthy written submissions on 3 October 2019 and 1 November 2019 respectively.  In these written submissions, he listed no less than sixteen bases in support of the appeal.  By way of the lengthy and tedious grounds and submissions, the applicant practically sought to re-argue the submissions advanced but failed before the Judge, which challenged the Tribunal’s approach in adopting the principle of “costs to follow the event”.  In essence, the applicant contended that in making the Costs Decision, the Tribunal was wrong in adopting the “costs to follow the event” principle, in particular given that the nature of the tribunal system was to provide a speedy and inexpensive access to justice.

11.The Building Authority as the putative respondent submitted a statement of opposition on 17 October 2019 opposing this appeal.

C2.  Discussion

12.In considering this appeal, we bear in mind the following general principles:

(1)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse the judge’s decision if an appellant can demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(2)  In an appeal against refusal of leave to apply for judicial review, generally the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the tribunal afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

See: Nupur Mst v Director of Immigration [2018] HKCA at [14].

13.The Judge gave his reasons for refusing the applicant’s leave application to judicially review the Costs Decision at paragraph 19 of the Judgment as follows:

“19. Second, the Applicant argued that the Tribunal should not apply the ‘costs to follow the event’ principle but ought, instead, to adopt a ‘low cost regime’ when dealing with appeals to the Tribunal by litigants in person, drawing support from some overseas literatures. In Hong Kong, the question of costs in an appeal to the Tribunal is governed by Section 51 of the Buildings Ordinance, which provides that the Tribunal may make such order as to costs as it thinks fit. This confers upon the Tribunal a wide discretion on matters of costs. As can be seen from the 2018 Costs Decision, the Tribunal did not apply the ‘costs to follow the event’ principle rigidly, but regarded it as being a prima facie principle or a ‘starting point’ (paragraph 16). The Tribunal set out other considerations relevant to the exercise of its discretion on costs (paragraph 8), and stated that ‘in the exercise of the power given to the Tribunal under section 51(1) to award costs the Tribunal should act with a degree of restraint because in most of the cases the Appellant acts in person and may have some legitimate and justifiable grievance against the order of the Building Authority under challenge. To that extent if the grounds of appeal are reasonable and the arguments in support are tenable and proportionate to the subject matter in dispute, it is not uncommon for the Tribunal to be sympathetic to the appellants’ (paragraph 14). The Tribunal also made it clear that it would have ordered the Applicant to bear the BA’s costs even if the ‘costs to follow the event’ principle was not applicable to the Tribunal’s appeals generally, because (i) none of the points raised by the Applicant was meritorious or arguable, and it was ‘wholly unreasonable’ for the Applicant to raise the grounds he ‘insisted and persisted resulting in a huge number of frivolous arguments presented in the course of the appeal’ (paragraph 9), (ii) the Applicant repeated many of the grounds which he took, unsuccessfully, in the 2008 Appeal, which conduct the Tribunal considered to be unreasonable (paragraphs 10 and 11), and (iii) the Applicant was motivated by self-interest, instead of public interest, in pursuing the appeal (paragraph 13). In my view, the Tribunal’s approach to the issue of costs is correct as matter of law, and its decision on costs cannot be said to be unreasonable in the Wednesbury sense.”

14.In gist, the Judge concluded that under section 51 of the Building Ordinance (Cap 123) (“the BO”), the Tribunal was given a wide discretion to decide costs.  The Tribunal in making the Costs Decision had rightly taken into account various relevant considerations to order the applicant to pay costs, including in particular the clearly unmeritorious and frivolous nature of the applicant’s arguments raised before the Tribunal.  In the premises, in exercising its discretion in arriving at the Costs Decision, the Tribunal did not err in principle, did not strictly and only adopt the costs follow the event principle, and the decision was clearly not Wednesbury unreasonable given all the relevant factors that the Tribunal had properly taken into account.

15.As stated above, the applicant in this appeal only sought to repeat his arguments raised but failed before the Judge.  He has not in our view pointed out with any particularities any errors in the Judge’s above reasons.  These are not viable grounds of appeal, and on this basis alone, we should dismiss the appeal.

16.In any event, the Judge’s above analysis is clearly right and cannot be faulted.  The power to award costs is vested in the Tribunal by virtue of section 51(1) of the BO[3].  The Tribunal thus enjoys a wide discretion when it comes to costs.  The court in judicial review will only interfere such exercise of wide discretion if it can be shown that the Tribunal has erred in principle, taken into account irrelevant factors, failed to take into account relevant factors, or acted irrationally (in public law sense) when making the Costs Decision.

17.As observed by the Judge, we agree that the Tribunal did not commit any of these public law errors.  As shown in the Costs Decision, when exercising the discretion:

(1)  The Tribunal was guided by the correct general principles and took into account relevant factors, such as the merits of appeal and conducts of the parties.  See paragraph 8 of the Costs Decision.

(2)  It considered in detail the applicant’s submissions as to why the principle of “costs to follow event” should not be adopted, and concluded that the principle was only a starting position when considering costs, where the Tribunal in exercising the discretion would also take into account all relevant factors when deciding costs.  It then took into account the factors that the appeal was wholly unmeritorious, the appeal was unduly protracted by the applicant’s conducts and his voluminous, frivolous and repetitive arguments, and the applicant pursued the appeal out of his self-interest but not in public interest, and balanced them against the fact that the applicant acted in person before concluding that the applicant shall bear the costs of the appeal.  See paragraphs 8 - 17 of the Costs Decision.

(3)  Further and in any event, as pointed out by the Judge, the Tribunal alternatively concluded that, even if it did not adopt “costs to follow event” principle, it would award the costs in the same way after considering those factors.  See paragraph 15 of the Costs Decision.

18.In the premises, the Tribunal clearly did not err in principle, take into account irrelevant factors, fail to take into account relevant factors, or act irrationally in making the Costs Decision.

19.The Judge is therefore plainly right in concluding that the applicant’s intended judicial review against the Costs Decision was without any merits and refusing to grant leave to him to apply for judicial review.

D.  DISPOSITION

20.For these reasons, this appeal is entirely without merits.  We will dismiss it.

21.There is no reason why costs should not follow the event.  We further order on a nisi basis that the applicant shall pay the costs of this appeal to the Building Authority, which will be assessed summarily on paper.  For that purpose, we further direct that the Building Authority shall file and serve a statement of costs within seven days from the date of this judgment, and the applicant shall file and serve his written comments (not more than two pages), if any, on the statement seven days thereafter. If the applicant files a written comment which is more than two pages as directed herein, the court will disregard it and not take it into account in assessing costs.

Ms Katherine Chan, Government Counsel of the Department of Justice, for the putative respondent

The applicant acting in person