李鴻發 v. 香港警務處 and Another

HCAL 542/2022

[2022] HKCFI 3440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 542 OF 2022

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submissions:  4 and 8 November 2022

Date of Costs Ruling:  30 November 2022

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C O S T S    R U L I N G

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A. Introduction

1.In my Decision dated 27 October 2022 [2022] HKCFI 3165, I refused the Applicant’s application for leave to apply for judicial review to challenge the Decision dated 10 November 2021, by which the Applicant (previously a sergeant in the Hong Kong Police Force) was dismissed from the Police Force without retirement benefits, immediately after being reduced to the rank of constable.

2.I made my Decision following my directions dated 20 July 2022, permitting an Initial Response to be filed on behalf of the Police Force and the CSB, and for the Applicant to file a reply. Though an Initial Response was filed, the Applicant failed to take advantage of the leave granted to him to serve a reply, either within the deadline set or at all. I was satisfied that it was appropriate for me to deal with the application on paper, and indeed I had previously informed the parties that, were I to decide to deal with the application for leave to apply for judicial review on paper, I would proceed to do so without further notice to the parties.

3.I summarized my Decision as follows:

(1)  The CSB had no involvement in making the Decision, and the intended application against the CSB must fail in limine.

(2)  The intended action against the Police Force must also fail for one or a combination of a number of reasons, including that: (1) the challenge had been brought out of time, and the Applicant had not applied for, nor sought to explain why he might be entitled to, any extension of time; (2) the Applicant had failed to identify any intended grounds of review; and (3) in any event, there was no apparent arguable failure to have complied with any public law requirements.

4.I then gave more detailed reasons on each aspect.

5.As to costs, in the broad exercise of my discretion as to costs, it seemed to me in the circumstances that it was appropriate for the Police Force’s costs to be borne by the Applicant (though I could not see that the CSB would separately have incurred any costs). I ordered the costs to be payable by the Applicant to be subject to a summary assessment by me on paper, and gave directions for the Police Force to provide its Statement of Costs within 14 days, and for the Applicant to provide any List of Objections in response within 14 days thereafter. I said I would then perform the summary assessment and notify the parties of the result.

B.  Subsequent Correspondence

6.The Statement of Costs for Summary Assessment was provided by Ms Lai under cover of a letter dated 8 November 2022, seeking the total sum of $28,536.

7.However, prior to that, the Applicant wrote a letter to the Court dated 4 November 2022. The letter was apparently not copied to the DOJ (though it should have been, to avoid unilateral communication with the Court), and I have since arranged for that copy to be provided. Nevertheless, I do not need to await any response.

8.In the letter, the Applicant seeks to explain some of the background relating to the matters for which he was sentenced, as referred to in my Decision. The letter then goes on to offer an “Explanation”, which (in summary) makes the following points:

(1)  On 5 November 2021, he received notification from the Police Force of the demotion and dismissal.

(2)  After that, he sought but failed to obtain help, despite writing to the Police Force and the CSB many times. The only response was an explanation of the demotion and dismissal by referring to the Police Force Ordinance.

(3)  The actions of the Police Force and the ICAC have caused him emotional distress and mental breakdown, leading to the loss of his job, salary, pension, family and marriage. He is now alone.

(4)  The Police Force has exercised power under the wrong ordinance, because he has not committed treason, nor corruption by receiving any advantage, nor destroyed the financial system.

(5)  He has not undergone any police disciplinary hearing, not received any letter of demotion, and not destroyed the financial system.

(6)  He does not understand why the Decision was made on paper without a court hearing.

(7)  He has made mistakes, but breached no law, and he really does not understand why the Court required him to pay costs.

(8)  He hopes the Court can give him a chance to have an oral hearing, so that he can regain some dignity and have a chance to turn over a new leaf. Winning or losing is no longer important.

C.  The Court’s Approach to the Correspondence

9.Now is not the time for the Applicant, by correspondence, to seek to reopen the matters dealt with in the Decision.

10.As is obvious and the content of the Decision itself makes clear:

(1)  This was the Applicant’s application, for him to pursue.

(2)  The Applicant was informed of the directions that the putative respondents should file an Initial Response, to which the Applicant had leave to file a reply.

(3)  Though the Initial Response was filed, the Applicant failed to take advantage of the grant of leave to file a reply.

(4)  He failed to file any reply, either by the deadline set in the directions, or at any time prior to the making of Decision.

(5)  The Applicant did not seek an oral hearing in his application.

(6)  In any event, the directions had also made clear to the Applicant that, if at the end of the timetable set by the directions the Court felt it appropriate to deal with the application on paper, it would go on to do so without further notice to the parties.

(7)  The Applicant must therefore have known that (a) the application might be dealt with on paper and (b) it would be so dealt with on the basis of whatever materials had by then been provided to the Court.

(8)  The Decision is fully reasoned, and goes on to consider the third point relating to the merits of the intended challenge, notwithstanding that the application might have been dismissed on either of first two points relating to the application being out of time and failing to state any grounds for the intended review.

11.In essence, the Applicant was given a full opportunity to put matters before the Court as might persuade the Court to grant him leave to apply for judicial review. If the Applicant now feels that he failed to take the full opportunity afforded to him, that may be unfortunate, but it is too late. Having made the Decision, the Court is functus officio. The Court cannot and will not revisit the matters dealt with in the Decision, simply because the Applicant now wants that to happen.

12.Potential redress for any dissatisfaction with the decision must lie elsewhere.

D.  Summary Assessment of Costs

13.I approach the summary assessment of costs on the usual relatively broad-brush basis, looking both at the overall figure claimed and the individual component elements of it, assessing the reasonableness and proportionality of the costs claimed against the degree of complexity and importance of the issues in dispute and at stake in the proceedings.

14.As already indicated, the Statement of Costs seeks the cost to be assessed in the sum of $28,536. Most of that sum relates to the time spent by Ms Lai (around 6 hours in total) on her attendance on the client, and the perusal and preparation of documents. I note that, quite properly, no part of the claim relates to any time spent by Ms Cheung, who assisted Ms Lai in this matter. Other aspects of the costs claimed relate to certain manual work, collating bundles and disbursements.

15.Perhaps unsurprisingly in light of his more general desire to revisit the whole question raised on his application, the Applicant has not listed any objections to the Statement of Costs by the deadline of 22 November 2022. Nevertheless, I have carefully considered the costs claimed on the basis I have identified above.

16.It seems to me that, in broad terms, the overall figure claimed is not disproportionate to the issues involved and the likely time necessary to address those issues. Similarly, the individual elements of the costs and disbursements claimed are not obviously unreasonable or disproportionately.

17.Looking at matters overall, it seems to me that it is appropriate to make summary assessment of costs in the sum of $25,000.

The applicant, acting in person

Ms Liesl Lai, Senior Government Counsel (Ag.), of the Department of Justice, for the putative respondents+