N v. Secretary for Security and Others

HCAL 961/2021

[2025] HKCFI 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 961 OF 2021

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AND

HCAL 1034/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1034 OF 2021

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(Heard together)

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VARIATION OF
COSTS ORDER NISI

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A.  Introduction

1.By my Judgment dated 31 July 2024, [2024] HKCFI 1983, I dealt with the applications of the Applicants (“N” in HCAL 961/2021 and “M” in HCAL 1034/2021) seeking to challenge their respective Classification as “not a TIP victim”.

2.I adopt in this decision the definitions and abbreviations used in that Judgment.

3.I summary, I decided in the Judgment that:

(1)  extension of time and leave to apply for judicial review would be rejected for all grounds of review put forward by N in HCAL 961/2021;

(2)  the necessary extension of time and leave to apply for judicial review would be granted for M on Ground 1 in HCAL 1034/2021;

(3)  though Ground 1 was substantively established, the discretionary grant of relief would be refused;

(4)  extension of time and leave to apply for judicial review would be rejected on Grounds 2 to 4 put forward by M in HCAL 1034/2021; and

(5)  as to costs, and where public funds were involved on both sides of the argument, there would be a nisi order that there be no order as to costs (save that the Applicants’ own costs should be taxed in accordance with the legal aid regulations).

4.By my previous Decision dated 12 May 2022, [2022] HKCFI 1388, I had also dismissed the Applicants’ summonses dated 30 November 2021 to adduce expert evidence (“Expert Summonses”).

5.The 1^st to 5^th Putative Respondents (“Respondents”) have applied to vary the costs order nisi. The parties have filed written submissions in accordance with directions given. I now decide the matter on the papers.

B.  Variation Sought

6.The Respondents invite the Court to vary the costs order nisi to the effect that:

(1)  the costs of and occasioned by these proceedings, including all costs reserved and costs on the Expert Summonses, be paid by the Applicants to the Respondents to be taxed if not agreed; and

(2)  the costs of this variation application be to the Respondents to be summarily assessed.

7.The Applicants oppose the variation, and themselves seek the costs of this variation application to be summarily assessed.

C.  Extent of Legal Aid

8.Mr Ho has helpfully reminded me of the extent of coverage of legal aid for N and M, by reference to the following table, which I adopt:

Matter	Outcome	Legal Aid Status
Expert Summonses	Dismissed	No legal aid
Original rolled up hearing date of 25 May 2022	Re-fixed for 15 and 16 August 2022 due to the “confused legal aid situation”	No legal aid
Rolled up hearing	N (HCAL 961/2021) Grounds 1 to 3 rejected Ground 4 rejected	On legal aid No legal aid
Rolled up hearing	M (HCAL 1034/2021) Ground 1 substantiated, but no relief granted Ground 2 rejected Grounds 3 and 4 rejected	On legal aid On legal aid No legal aid

D.  Applicable Principles

9.The general principles on costs in the present context were outlined by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at §17(1)-(5), as applied by me in Cai Zhenrong v Stock Exchange of Hong Kong Ltd [2021] HKCFI 1899 at §132. Important considerations include:

(1)  the merits of the intended grounds of review;

(2)  whether the putative respondent attended the oral hearing upon the court’s direction;

(3)  whether the evidence filed and submissions made provided substantial and helpful assistance to the court;

(4)  whether the applicant effectively had a hearing on the merits of his/her intended application for judicial review.

10.Mr Ho also invites me to approach the question of costs in this case with the following specific principles in mind:

(1)  The starting point is the general rule that, even in public law litigation, costs should follow the event. This reflects the notion that a successful party should be compensated for the costs incurred in successfully pursuing or defending a claim, which is of equal application where public funds are involved.

(2)  As a matter of principle, the fact that the applicant for leave to apply for judicial review is impecunious is not a relevant factor. This is because the recoverability of costs is not a relevant consideration in the making or not making of a costs order. To the contrary, compensatory costs can serve to give litigants pause for thought before embarking on ill-conceived or unmeritorious litigation.

(3)  That Hong Kong has in place a generous legal aid scheme has, to a large extent, ameliorated the potential deterrent or chilling effect of an adverse costs order being made against an unsuccessful applicant in an application for leave to apply for judicial review.

(4)  The fact that the party is legally aided does not alter the Court’s approach in the exercise of its discretion in making a costs order in favour or against an aided person, whether or not such order can be enforced against that person.

(5)  Whilst RHC Order 62 rule 5 provides for a number of factors that the Court should consider in the exercise of discretion as to costs, whether a party is legally aided is not one of those factors.

(6)  It is not a relevant factor to consider the utility of imposing a costs order when public funds are involved on both sides, because political decisions, and in particular matters of public finances, are not for the courts to pronounce upon.

11.On the other side, Mr Chan refers to the principles relevant to the exception in ‘public interest litigation’ cases, as recently reiterated by me in Kwok Cheuk Kin v Chief Executive in Council [2024] HKCFI 358 at §6, namely that:

(1)  Whilst the starting point remains the usual position the costs will follow the event, depending on the particular circumstances of the case the principles regarding ‘public interest litigation’ may justify a departure from the usual order.

(2)  The three criteria of ‘public interest litigation’ are:

(a)  the litigant has properly brought proceedings to seek guidance from the court on a point of general public importance, so that the litigation is for the benefit of the community as a whole, to warrant the costs of the litigation being borne by the public purse as costs incidental to good public administration;

(b)  the judicial decision has contributed to the proper understanding of the law in question; and

(c)  the litigant has no private gain in the outcome.

(3)  The criterion of contribution to the proper understanding of the law is not limited to issues where the legal principles have not been settled and thus need further development or clarification. The criterion should cover a question of how the relevant law is applied to a particular set of facts.

(4)  Similarly, the second requirement that the judicial decision required to be made in the litigation should contribute to the proper understanding of the law in question is not limited to only resolution of issues that involve difficult or unsettled legal principles.

(5)  Nor is there any absolute standard by which to define what amounts to an issue of general public importance. The question is ultimately a matter of degree, where identifying it is an objective exercise and where the court would pay regard to the qualitative significance of the issues at stake.

(6)  Nevertheless, other than the overarching twin criteria of public interest litigation, the other factors (including the merits, the existence or otherwise of a private interest, the relative financial resources of the applicant and the respondent, the reasonableness of the applicant in approach, et cetera (are all matters that the court could take into account in its exercise of discretion to decide whether it is just and fair to depart from the usual position that costs follow the event.

(7)  For example, however important the point an issue may be in a public interest litigation case, the lack of merits will rarely (if ever) a party from an adverse order for costs.

(8)  In a rolled up hearing, where the applicant is ultimately unsuccessful but where the court identifies that the applications were reasonably arguable to justify the grant of leave, that may (depending on the particular circumstances) justify a departure from the usual order.

(9)  But, if an applicant cannot satisfy the minimum threshold for grant of leave to apply for judicial review, the applicant will ordinarily not be able to contend that canvassing his arguments in court is or was in furtherance of public interest. Indeed, it cannot be in the public interest of the community as a whole to require the use of public funds to pay for the costs of legal proceedings for resolution of an argument which has no real prospect of success.

E.  Context

12.Mr Chan also seeks to emphasise that the way in which the Applicants have decided to proceed in these proceedings (including when applying for leave to adduce expert evidence) must be understood within the overall development in this area of law. He pointed to the following matters in summary):

(1)  These proceedings were commenced when only the judgments in the ZN case were available, where the courts had for the first time grappled with the issues concerning human trafficking, Palermo Protocol and breach of BOR4.

(2)  The CB case was commenced and heard before the rolled up hearing of these two actions, but the judgment in CB(CFI) was yet to be handed down on the date originally fixed for the rolled up hearing of these proceedings.

(3)  The complaints raised in these proceedings and in the CB case were different, although overlapping.

(4)  For example, the argument that the HKSARG has a duty to legislate bespoke criminal offence was advanced on a different and novel footing.

(5)  Parts of the reasoning in CB(CFI), which was available by the time of the adjourned rolled up hearing in these proceedings could in principle advance the Applicants’ case further, and were relied upon.

(6)  Between the rolled up hearing and handing down of judgment in these proceedings, the Court of Appeal heard and determined the appeal in the CB case.

(7)  Even now, the CB case is on its way to the Court of Final Appeal – and a new judicial review application in HCAL 1530/2024 has been commenced raising a further novel argument for legislating a bespoke criminal offence for victims of forced labour (and leave to apply for judicial review has been granted on the papers).

13.Hence, Mr Chan submits that these proceedings relate to an area of the law which is and has been evolving, gradually unfolding through the various cases since the ZN case.

14.I would also note that the Grounds 1 and 2 were essentially individual and fact specific to each of the applications of N and M, whilst Grounds 3 and 4 (although to an extent relying on the underlying facts asserted) were more general and systemic challenges.

F.  Submissions

15.As to the position in N’s case, Mr Ho submits that:

(1)  There is no reason why N should not bear the costs of the Expert Summons, which was misconceived.

(2)  All intended grounds put forward by N did not pass the reasonable arguability threshold.

(3)  The Respondents participated in submissions for the Expert Summonses and at the rolled up hearing, hopefully providing substantial and helpful assistance to the Court.

(4)  Substantive evidence was filed and extensive submissions made, orally and in writing. N effectively had a full hearing on the merits.

(5)  The fact that N is partially on legal aid is irrelevant.

(6)  There is no basis to invoke the public interest litigation factor, because (a) her intended grounds did not even pass the reasonable arguability threshold, and (b) N cannot be said to be seeking guidance on a point of general public importance for the benefit of the community as a whole and that she stood to obtain no private gain from the litigation.

16.As to the position in M’s case, Mr Ho submits that:

(1)  There is no reason why M should not bear the costs of the Expert Summons, which was misconceived.

(2)  Grounds 2, 3 and 4 put forward by M did not pass the reasonable arguable that it threshold.

(3)  As to Ground 1, whilst the Court found it to have been substantively established, there was no benefit or practical utility to the grant of any relief. Viewed as a matter of realistic common sense, and not technicality, the ‘event’ had been determined in favour of the Respondents. At best there would be a small percentage reduction in the overall costs payable by M, but no entire absolution of her liability to pay the costs of the Respondents.

(4)  The Respondents participated in submissions for the Expert Summonses and at the rolled up hearing, hopefully providing substantial and helpful assistance to the Court.

(5)  Substantive evidence was filed and extensive submissions made, orally and in writing. M effectively had a full hearing on the merits.

(6)  The fact that M is partially on legal aid is irrelevant.

(7)  There is no basis to invoke the public interest litigation factor, because (a) her intended Grounds 2, 3 and 4 did not even pass the reasonable arguability threshold, and (b) M cannot be said to be seeking guidance on a point of general public importance for the benefit of the community as a whole and that she stood to obtain no private gain from the litigation.

17.Mr Chan deals with both cases together and submits that:

(1)  The first and second criteria of public interest litigation are readily satisfied.

(2)  In question were the public law rights arising from the TIP Guideline and the constitutional rights under BOR4, rights which are enjoyed not only by the Applicants but by the general public.

(3)  Given the various rulings and opinions expressed in the Judgment (Mr Chan referred to a number of specific paragraphs), it is absurd for the Respondents to suggest that the Judgment neither benefits the community as a whole, nor contributes to the proper understanding of the law in question.

(4)  Although the Court dismissed the Expert Summonses, the question whether the expert opinions proposed to be given would be considered relevant, necessary or probative to the various Grounds of review was itself a novel question for the Court to determine.

(5)  The decision on the Expert Summonses contributed to the proper understanding of the boundary within which the Court will undertake a review of the VIS mechanism and its effectiveness, and how it will consider any alleged breach of the HKSARG’s duties, as well as the operation of the dualist principle.

(6)  As to the third criterion, there is no private gain which the Applicants could obtain out of these actions. Recognising an individual as a victim of serious maltreatment can hardly be said to be a “game”, and in any event the applicants were not pursuing any declaration of positive victimhood.

(7)  These actions were not the type of cases where the Applicants failed on the arguability threshold per se, but were decided after taking into account the evidence and arguments put forward by the Respondents, and after recognising some force in some of the Applicants’ arguments.

(8)  Viewed as a whole, given the depth of submissions made by the parties and the analysis of the Court, these applications were not one without merit or without any factual foundation, and could not be described as improper, vexatious or an abuse of process.

(9)  The applications did not waste the Court’s time, and the Applicants’ conduct of the proceedings was unexceptional.

(10)  Where sufficient merit was identified in M’s case, the extension of time required was granted.

G.  Analysis of Submissions

18.First, it seems to me that although there was significant overlap between the two cases put forward for N and M, the costs consequences of each case should ultimately properly be considered separately (though it may be that the nature of the orders to be made in each separate case will be the same).

19.Second, there is considerable force in Mr Ho’s submission that the costs should follow the event in each of the Expert Summonses. I am not sure Mr Chan is correct in suggesting that the determination of the Expert Summonses provided any substantial contribution to understanding the boundaries of the task engaged in by the Court on an intended judicial review challenge such as was raised in the present circumstances. Further, the Expert Summonses can be viewed as relatively stand-alone interlocutory applications, and the costs consequences of them are not so directly linked to the overall outcome or consideration of the matters canvassed at the rolled up hearing. For example, even had the Applicants succeeded on the judicial review, it is possible, and perhaps likely, that the separate costs of the Expert Summonses would have been awarded against them.

20.Third, as to the rolled up hearing, I do not think the costs of the first fixed date, when the hearing was adjourned in circumstances of a lack of clarity relating to the position on legal aid, need to be viewed separately from the overall costs of the rolled up hearing. In other words, no separate order be made as regards the dates originally fixed for May 2022.

21.Fourth, where each Applicant’s case on Grounds 1 and 2 were essentially fact-specific and fact-dependant, that is a point of distinction from their respective cases on Grounds 3 and 4, which (as indicated above) comprised challenges which were more systemic in form.

22.Fifth, I do not think it correct to suggest that M was not the winner on her Ground 1. Though I exercise my discretion not to grant relief, M succeeded on the substantive argument on that Ground 1 – against the argument advanced by the Respondents. My finding was one of a clear failure on the part of the Respondent in respect of the duties it owed to M on the facts – and where the claimed second-tier screening was both without documentary evidence and suffered from the chronological mismatch difficulties identified by me.

23.Sixth, though I ultimately considered Grounds 3 and 4 in each case (on essentially the same contest in both cases) not to have reached the threshold for granting leave to apply for judicial review, there was in fact significant argument on these grounds as a result of the nature of the rolled up hearing. I also accept that these grounds were of the sort which the cases have in mind as potentially meeting the public interest litigation test, and occurred in the context of relatively new and evolving legal considerations.

24.Seventh, including for the above reasons, and though it may complicate the taxation process, this is a case in which I think issue-based or ground-based orders are appropriate.

25.Eighth, though I acknowledge the principles set out above which make the impecuniosity of a party largely irrelevant to the appropriate costs orders to be made, I cannot help thinking it would be unfortunate if these Applicants – who came to Hong Kong to work and earn a better income for themselves and their families, but who were at least very badly treated by those who recruited them and employed them, and one of whom was to an extent let down by those in authority who are supposed to afford protection – would end up in a worse financial position from pursuing their rights as they saw them. But perhaps that relates to a choice of enforcement or not.

H.  Costs Orders

26.Therefore, I make the following costs orders, which to an extent vary the previous order nisi.

27.As to the case of N in HCAL 961/2021:

(1)  N shall be liable for the Respondents’ costs of her Expert Summons.

(2)  N shall be liable for the Respondents’ costs of her Grounds 1 and 2.

(3)  There shall be no order as to costs of N’s Grounds 3 and 4.

28.As to the case of M in HCAL 1034/2021:

(1)  M shall be liable for the Respondents’ costs of her Expert Summons.

(2)  The Respondents shall pay M’s costs of her Ground 1.

(3)  M shall be liable for the Respondents’ costs of her Ground 2.

(4)  There shall be no order as to costs of M’s Grounds 3 and 4.

29.All costs awarded in either direction shall be taxed if not agreed, and any set-off applicable shall be made.

30.In the above circumstances, where I have varied the costs order nisi, but not fully in accordance with the application for variation advanced by the Respondents, it seems to me that it is appropriate in the exercise of my discretion that there be no order as to the costs of this argument.

31.The Applicants’ own costs shall be taxed in accordance with the legal aid regulations.

Mr Kay KW Chan and Mr Tasman Tam, instructed by Choy Yung & Co., Solicitors, for the applicants in both cases

Mr Martin Ho, instructed by the Department of Justice, for all putative respondents in both cases