Kwok Cheuk Kin v. Secretary for Justice
Read the full judgment text of CACV 8/2019 on BabelCite. This Court of Appeal judgment was delivered on 15 July 2021 before Poon CJHC, Lam VP and Barma JA.
Civil procedure – costs – public interest litigation exception – constitutional and administrative law – Basic Law interpretation – 'One Country, Two Systems' – co-location arrangement – Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap 632) – Mainland Port Area at West Kowloon Station – Basic Law Articles 18 and 19 – high degree of autonomy – 'living instrument' doctrine – purposive and contextual interpretation – proportionality assessment – four conjoined judicial reviews and appeals – whether PIL exception applies at appellate level – whether unsuccessful appellants should be ordered to pay costs – Applicants relied on PIL exception; Respondents submitted appeals were plainly unmeritorious, Applicants instructed three teams of lawyers and raised numerous irrelevant arguments – Court of Appeal (Poon CJHC, Lam VP and Barma JA) applied the three criteria from Kwok Cheuk Kin v Director of Lands [2021] HKCA 915 – criteria (1) and (3) not disputed; criterion (2) required significant contribution to a point of general public importance per Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 – position on appeal to be considered separately from first instance – first instance no-order as to costs not determinative of appellate costs – appeals concerned novel constitutional situation not envisaged at promulgation of Basic Law – Court of Appeal judgment shed new light on 'One Country, Two Systems' and interface between two systems and significance of NPCSC Decision – proportionality not considered at first instance by Chow J – appeals not so manifestly devoid of merit as to be improperly brought – multiplicity of proceedings and multiple teams of lawyers not a sufficient reason to displace PIL exception in circumstances – Court cautioned that what a third party cannot achieve by intervention should not be achieved by fresh judicial review proceedings – first instance courts may stay new proceedings or confine an applicant to specific issues (per 尹照華 v Director of Agriculture, Fisheries and Conservation HCMP 1085/2015; Leung Kwok Hung v Chief Executive in Council [2020] 1 HKLRD 1; QT v Director of Immigration [2018] HKCFA 17) – PIL criteria satisfied in all four appeals – no order as to costs in all the appeals, including costs of the submissions on costs.
Legal issues: Application of the public interest litigation exception to costs in constitutional appeals concerning the co-location ordinance
Outcome: Appeals dismissed on the merits (judgment of 11 June 2021); on costs, the PIL exception applied and there was no order as to costs in all four appeals.
Cited by 1 case · Cites 8 cases
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CACV 8/2019, [2021] HKCA 1012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 8 OF 2019 (ON APPEAL FROM HCAL 1165/2018) ________________________
________________________ AND CIVIL APPEAL NO 10 OF 2019 (ON APPEAL FROM HCAL 1178/2018) ________________________
________________________ AND CIVIL APPEAL NO 87 OF 2019 (ON APPEAL FROM HCAL 1160/2018) ________________________
__________________________ AND CIVIL APPEAL NO 88 OF 2019 (ON APPEAL FROM HCAL 1164/2018) __________________________
__________________________ (Heard together)
________________________ DECISION ON COSTS ________________________ Hon Lam VP (giving the Decision on Costs of the Court): 1.We handed down our judgment on 11 June 2021 dismissing these appeals and directing the parties to lodge submissions on costs. 2.The Applicants lodged their respective submissions on costs on 25 June 2021. They all relied on the public interest litigation exception and contended that there should be no order as to costs in the appeals. 3.The Respondents lodged submissions on 25 June 2021 seeking costs from the Applicants. Whilst it was not disputed that the public interest litigation exception could be applicable in the present appeals, Mr Chan submitted on behalf of the Respondents that the exception is only one of the factors relevant to the determination of costs. Counsel submitted that the Applicants’ challenge was plainly unmeritorious for the following reasons:
4.The public interest litigation (“PIL”) exception is well established in our jurisprudence and it has recently been applied by this Court (Poon CJHC, Lam VP and Au JA) in Kwok Wing Hang v Chief Executive in Council [2020] HKCA 837 and Kwok Cheuk Kin v Director of Lands [2021] HKCA 915. At [10] of the latter case, the relevant criteria for PIL were summarized as follows:
5.As stated at [11], [20] and [21] of that judgment, even if these criteria were satisfied the courts still have a discretion to order costs against an unsuccessful applicant if it is fair and just to do so. In Kwok Wing Hang v Chief Executive in Council, supra, at [20] it was held that it is a matter of degree to which the PIL criteria were satisfied and it was an objective exercise where the court would pay regard to the qualitative significance of the issues at stake. Also there are cases where other strong and cogent factors weigh against the PIL factor. Some of the examples given are that where an applicant has wasted the court’s time and that the issues raised are plainly unmeritorious. 6.In the present appeals, we can readily accept that criteria (1) and (3) are satisfied. Subject to his contentions on the appeals lacking in merits, Mr Chan had not advanced anything to dispute this. 7.As regards criterion (2), in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 at [46], the Court emphasized that it has to be a significant contribution to a point of general public importance. 8.Further, in the application of that criterion, the position on appeal has to be considered separately from the position at first instance. By the time of the appeal, there is already a first instance judgment providing guidance on the law. Whilst there are cases where the complexity and importance of the legal arguments warrant an appellate decision (and thus satisfying criterion (2)), there are also cases where the issue in question is not complex and the first instance judgment has clearly explained the law so that an unsuccessful appeal did not add much to the clarification of the point of general public importance. 9.Thus, as a matter of principle, Mr Chan is correct in his submission that the fact that Chow J (as he then was) had decided that there should be no order as to costs on PIL ground at first instance is not determinative as regards the costs of the appeals. 10.With these principles in mind, we have given due consideration to how the discretion as to costs should be exercised in the present appeals. In our judgment, there should be no order for costs in all the appeals (including the costs of the submissions on costs) by virtue of the PIL exception. 11.First, we do not regard the present appeals as so manifestly devoid of merit that they cannot be regarded as having been properly brought. With respect, Mr Chan had simplified the niceties of the competing arguments on the compatibility of the Ordinance with BL 18 and 19. As is evident from a reading of our judgment of 11 June 2021, the resolution of the issue depends greatly on having a proper perspective as to fundamental notions underlying the “One Country, Two Systems” principle and the proper understanding of the bounds of the high degree of autonomy under the Basic Law in respect of matters falling within the interface between the Mainland system and the Hong Kong system. These were matters which merited serious consideration by the Court of Appeal. 12.The proportionality analysis was not considered by Chow J to be the correct approach to address the central question in these cases. This Court did not dissent from that analysis though we considered the proportionality argument briefly by way of alternative discussion for the sake of completeness. In these circumstances, it cannot be said that the Applicants did not bring the appeals properly because the court had already held against them on proportionality and they did not have a real prospect of overturning such holding. 13.Second, we are of the view that the issue raised is one of great general public importance which should be considered by this Court for the benefit of the community notwithstanding the judgment of Chow J. As submitted on behalf of the Applicants, the issue arose out of a novel situation and as acknowledged by everybody in these appeals it is not a situation envisaged at the time when the Basic Law was promulgated. 14.Third, notwithstanding the very helpful judgment of Chow J, the exposition on “One Country, Two Systems” and the interface between the two systems and the significance of the NPCSC Decision on such matters discussed in the judgment of 11 June 2021 shed new light on these topics which are important to the proper understanding of the law. 15.There is no doubt that criterion (2) is satisfied. 16.Mr Chan also submitted that the Applicants had unnecessarily instructed three teams of lawyers and raised numerous irrelevant and hopeless arguments as conduct relevant to the exercise of discretion on costs. 17.There were altogether four sets of proceedings in the court below. We noted that two sets of proceedings are funded by legal aid whilst Mr Ng’s clients were privately funded. In terms of timing, the Notice of Appeal in CACV 8/2019 and the one in CACV 10/2019 were dated 10 January 2019 whilst the notices in CACV 87/2019 and CACV 88/2019 were issued on 21 February 2019. There is no evidence before us to suggest that there had been co-ordination between the Applicants at the time when they commenced the proceedings or the bringing of the appeals. We also have no information as to the rationale behind legal aid being granted for two sets of proceedings challenging the same subject matter. 18.The judge did not find the multiplicity of proceedings to be abusive in the circumstances of these cases. It is fair to say that though there were some common grounds, each team of lawyers had run some discrete points as well. In terms of the appeals, the multiple appeals have not substantially increased the costs. Whilst there are points which we rejected summarily, we do not find this to be a sufficient reason for ordering costs against the Applicants if we were otherwise satisfied that the PIL exception should apply. 19.Having said that, our decision in the present appeals should not be construed as our endorsement of multiple proceedings in respect of the same subject matter. Whilst there are cases where more than one set of proceedings may be justified, it is a matter of case management for the judge in charge of the Constitutional and Administrative Law List and the presiding judge hearing the cases to decide whether such justification exists in the particular circumstances of these cases. In this connection, it is pertinent to note the approach of the courts in dealing with application for intervention in existing proceedings by third parties as discussed in QT v Director of Immigration [2018] HKCFA 17, in particular at [16] to [18]:
20.What a third party cannot achieve by way of intervention should not be permitted to be achieved by commencing another set of proceedings for judicial review. If multiple proceedings are not justified, the first instance court could exercise its case management power to stay the new proceedings pending the determination of the issue in the earlier or the more suitable set of proceedings for the ventilation of the relevant issue (as in 尹照華 v Director of Agriculture, Fisheries and Conservation HCMP 1085/2015, 19 November 2015) or give directions confining an applicant in one set of proceedings to specific issues which were not canvassed in the parallel proceedings (as in Leung Kwok Hung v Chief Executive in Council HCAL 2949/2019:see [2020] 1 HKLRD 1 at [10]). 21.In the context of PIL assessment, when there was already one set of proceedings on foot raising similar issues, thus providing the platform for the adjudication of the same by the court, one has to examine whether there is any justification for additional sets of proceedings to be brought in order to seek the same guidance from the court. 22.As we said, these considerations should have been raised and addressed by the first instance judge as a case management matter. In the present appeals, since apparently no issue concerning four different sets of proceedings had been raised (as there is no respondent’s notice challenging the necessity for the same and the order for costs below), we are not going to take it upon ourselves to examine this question at this late stage in the context of our determination on costs. 23.For the reasons given above, we are satisfied that in the circumstances of these appeals, the PIL criteria are met in all the appeals. We will make an order that there be no order as to costs in all the appeals.
CACV 8/2019 Mr Ernest CY Ng and Mr Geoffrey Yeung, instructed by Kenneth Lam Solicitors, for the applicant Mr Anthony Chan, instructed by the Department of Justice, for the respondent CACV 10/2019 Mr Martin Lee SC, Mr Jeffrey Tam and Ms Isabel Tam, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the applicant Mr Anthony Chan, instructed by the Department of Justice, for the 1st and 2nd respondents CACV 87/2019 Mr Anthony Chan, instructed by the Department of Justice, for the respondent CACV 88/2019 Mr Hectar Pun SC, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, and Mr Anson Wong Yu Yat, instructed by Ho Tse Wai & Partners, for the applicant Mr Anthony Chan, instructed by the Department of Justice, for the respondent |
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