Ma Chun Man v. Commissioner of Correctional Services

HCAL 979/2024

[2025] HKCFI 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 979 OF 2024

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RULING ON COSTS

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Introduction

By the judgment (“the Judgment”) handed down on 6 December 2024, this court refused leave to apply for judicial review on Grounds 1-4[1] and 6-7[2]. Leave was granted on Ground 5[3] alone but the substantive judicial review application was dismissed.

2.At the end of the Judgment, there was a costs order nisi that: (1) there be no order as to costs for the leave application and the substantive judicial review; and (2) the Applicant’s own costs is to be taxed in accordance with the Legal Aid Regulations. By a summons dated 18 December 2024, the Putative Respondent/Respondent (“the Respondent”) now seeks to vary the costs order nisi and asks for costs of the leave application, the substantive hearing and the present application for variation.

Legal principles

3.The relevant principles on costs in cases of judicial review at first instance are authoritatively laid down in Leung Kwok Hung v President of the Legislative Council (No 2)[4]. To viz, even though leave applications are meant to be ex parte, a putative respondent or putative interested party may appear either on the application or at the court’s invitation. When that happens and the application for leave is refused, the court may be faced with an application for costs.

4.Generally speaking, an unsuccessful applicant in a leave application would generally not be ordered to pay the costs of a putative respondent or putative interested party save in special or unusual circumstances. This is because applicants seeking leave to apply for judicial review should, on the whole, be able to seek relief without fear, if permission was refused, of being saddled with the respondent’s costs at that stage. Equally, the imposition of a liability to bear a respondent’s costs should not become a deterrent to a litigant’s right to have access to the courts and care must be taken to ensure that costs “are not disproportionately inflated by the involvement of the other parties at the permission stage”. It has also been recognised that the character of judicial review proceedings to vindicate the public interest and the public importance of a case may be proper matters to take into account when exercising the discretion as to costs.

5.Furthermore, in Suen Mo Joel v Director of Social Welfare[5], Au J (as he then was) held that:

“this general position on costs in a contested unsuccessful leave application should as a matter of principle apply at least equally to a case where the applicant is in fact successful in the leave application, although he has lost subsequently in the substantive judicial review. This is also so as, barring exceptional circumstances, it would be odd to suggest that, in term of his liability for the putative respondent’s costs, an applicant would be worse off when he is successful in obtaining leave than when he is unsuccessful.”

In my judgment, although Suen Mo Joel did not concern a rolled-up hearing, there is no reason why the same principles should not, in appropriate factual situations, apply to allow some costs to be apportioned for a successful leave application in a rolled-up hearing.

6.On the other hand, the principle that a successful party in litigation is entitled to an award of costs in his favour is one grounded in reasons of fairness and policy. When a party is put to the expense of responding to a claim in a court of law and prevails, it is only fair that he should be compensated for his expenditure. Equally, compensatory costs orders have long been part of our legal system and they serve to give claimants pause for thought before embarking on ill-conceived or unmeritorious litigation.

7.Bearing in mind the aforesaid competing considerations, the basic principle remains that costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant. Factors to be taken into account include (but not limited to) the reason leading the opposing party to attend the hearing; whether that party’s attendance had been of material benefit to the court; and the underlying lack of merits of the application, always bearing in mind the context that the court had refused to grant leave. As to the latter, it has been pointed out in Leung Kwok Hung (No 2), ante,[6] approving Chan Noi Heung v Chief Executive in Council[7], that there is no good reason to extend the public interest litigation factor to an application for leave to apply for judicial review which does not even pass the reasonable arguability test.

8.Moreover, the fact that a party is legally added 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: s.19(1) of the Legal Aid Ordinance, Cap. 91. See also Chan Chi Shing v The Revising Officer Mr Symon Wong[8].

9.Last but not least, in the exercise of the discretion on costs, this court is entitled to take into account the fact that the applicant effectively had a full substantive hearing of his judicial review challenge: MST v Duty Lawyer Service[9], citing in approval Sky Wide Development Ltd v Building Authority[10] and Re Ho Mei Ling (No 2)[11].

The present case

10.Applying the above legal principles to the present case, having considered the submissions of the parties on costs, I bear in mind that this case was dealt with by way of a “rolled-up” hearing ordered by the court so that the Applicant in effect had a full substantive hearing of his judicial review challenge. I also bear in mind that during the two-day hearing held on 22 and 23 October 2024, an application for cross-examination was determined in the Applicant’s favour (on Ground 5 alone); a live witness was then heard; and complex full arguments were made over a broad landscape of legal issues.

11.That said, in respect of Grounds 1-3 and Grounds 6-7, which, in my judgment have no merits. The Applicant has simply failed to meet the reasonable arguability test. This is to contrast with Ground 4 which had been abandoned by the Applicant in written submissions filed before hearing.

12.As regards Ground 5 (procedural unfairness) for which leave was granted, however, having regard to Chu Hoi Dick v Secretary for Home Affairs (No 2)[12] and Chan Noi Heung v Chief Executive in Council[13], I am satisfied that the public interest litigation factor is present even though the Applicant has an interest in the outcome of the case. This is based on: (1) the fact that the present case was the first one decided on the newly enacted Safeguarding National Security Ordinance; and (2) the Judgment would, I hope, contribute to the proper understanding as to the procedure which the Commissioner of Correctional Services should follow in dealing with similar cases in the future.

13.Although the Applicant only managed to obtain leave on just one ground, that ground alone took up a significant proportion of court’s time. The Applicant lost in the substantive review on this ground after a consideration of all the evidence adduced before the court. Looking at the matter in the round, in the exercise of my discretion, I vary the costs order nisi and make an order absolute that the Applicant is to pay:

(1)  50% of the Respondent’s costs of the leave application and the substantive judicial review; and

(2)  The Respondent’s costs of the present application for variation.

The aforesaid costs are to be taxed (with a certificate of two counsel), if not agreed.

14.The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Written Submissions by Mr Steven Kwan, Mr Albert NB Wong, Mr Jason Ko (on a pro bono basis) and Ms Yvonne Leung (on a pro bono basis), instructed by S T Cheng & Co. (assigned by the Director of Legal Aid), for the Applicant

Written Submissions by Mr Mike Lui SC and Mr Martin Ho, instructed by the Department of Justice, for the Putative Respondent/Respondent