Lai Cheuk Yin v. Margaret Cheung Wai Fong

HCAL 631/2025

[2026] HKCFI 5861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 631 OF 2025

________________________

________________

__________________________________

COSTS VARIATION
RULING

__________________________________

A. Introduction

1.In my Judgment dated 4 July 2025 [2025] HKCFI 2563 (“Judgment”), I dismissed the application for leave to apply for judicial review, finding that all six grounds of review failed substantively, although I accepted that Ground 3 was reasonably arguable.  I continue to adopt the definitions used in the Judgment.

2.I made an order nisi for the Applicant to pay the EO’s and the Council’s costs, to be taxed if not agreed, with certificate for two counsel, and that there would be no order as to costs as between the Applicant and the Putative Interested Parties.  I also directed that any application for variation would be dealt with on paper.

3.By summons dated 18 July 2025, the Applicant sought to vary the costs order nisi to an order that there be no order as to costs.

4.In the directed written submissions, the Applicant was again represented by Mr Jeffrey Tam, Mr Albert Wan, and Ms Yvonne Leung of Counsel, and the EO and Council were represented by Mr Mike Lui SC, Mr Jimmy Ma, and Mr Alexander Burg of Counsel.

5.This is my Ruling.

B.   Legal Principles

6.It is well-established that costs generally follow the event.

7.But, as both Mr Tam and Mr Lui note, the Court has a broad discretion on deciding the matter of costs, and all facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.  This may include, amongst other things, the reason leading to the opposing party’s attendance at the hearing, the lack of merits of the application, or where as a result of the opposing party’s attendance, the hearing had proceeded with full argument such that the applicant has essentially had a full substantive hearing of the judicial review challenge: see the Court of Final Appeal’s judgment in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at 17.

8.However, Mr Tam submitted that the principles regarding ‘public interest litigation’ were applicable to the present case, which justified a departure from the general rule.

9.In my decision of Fung Ping Sum Connie v Appeal Panel (Estate Agents Ordinance) [2022] HKCFI 644 at §10, I summarised the applicable principles on ‘public interest litigation’ in relation to costs in public law cases, which can be restated as follows:

(1)  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.

(2)  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.

(3)  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.

(4)  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.

(5)  Nevertheless, it must be emphasised that, 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 respondent, the reasonableness of the applicant in approach, etc) 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 cots follow the event.

(6)  For example, however important the point in issue may be in a public interest litigation case, a lack of merits will rarely (if ever) save a party form an adverse order for costs.  Hence, the evaluation of merits and the conduct of the parties is part of the consideration as to whether or not the litigation really concerned a matter of sufficient public importance.

(7)  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.

(8)  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.

10.Those are the principles I apply to this case.

C.   Public Interest Litigation

11.Mr Tam submitted that this judicial review application fulfilled all three criteria of public interest litigation.  In summary, his submissions were:

(1)  The litigation had importance to both LU and the public, and this was recognised by LU as seen in LU’s solicitors’ letter to the Court dated 14 April 2025.

(2)  Whilst the regulations applicable to the Election were exclusive to LU, the election of undergraduate student representatives into governing bodies of universities is and was common in Hong Kong, the rules of which are provided in different Ordinances which govern universities.  Clarification of rules and regulations through this application hence benefitted other public universities with similar governing structures under the statutory regime.

(3)  Likewise, the application also benefitted other universities in that the Judgment was the first to deal with interpretation of rules and regulations for university electoral processes, and also clarified how the right to be heard applies in this context.

(4)  The Applicant was unlikely to have any private gain in the outcome given that he was expected to graduate in August 2025 and would not have been able to run for any elections in LU, and that it was unlikely that LU would organise a by-election during summer vacation (after the hearing on 13 June 2025).

12.In responding to say that the Applicant’s intended challenge did not serve any public interest, the EO and Council submitted that:

(1)  The Applicant’s challenge was only for his own personal interests, as it was about his personal/subjective grievance – in contrast with the EO and Council, who had to defend and uphold the integrity of the Election (on behalf of LU).

(2)  The Applicant’s challenge concerned only the Election, which was an election limited to returning student representatives to LU’s governing body for a limited tenure.

(3)  The Applicant’s reference to LU’s solicitors’ letter dated 14 April 2025, which stated that the proceedings were of “immense significance” to LU and were “in the interest of the public”, was taking the words out of context, and does not assist in showing public interest.

(4)  The relief pleaded by the Applicant in his Form 86 shows that the challenge was self-serving and did not benefit the community as a whole.

(5)  The issues raised in the litigation were mostly factual, and did not and could not contribute to any elucidation or development of the law (in response to the Applicant’s point on the Ordinances of different universities).

13.I do not think that the three criteria of ‘public interest litigation’ are satisfied.

14.Firstly, I agree with Mr Lui that Mr Tam’s reliance on the 14 April 2025 LU’s solicitors’ letter is misplaced.  Upon a fair reading of the letter as a whole, it seems to me that the solicitors meant that it was important for LU to “correct a host of false and misleading claims” and that it was important for the public to know that these claims were unsubstantiated.  Therefore, I think that this quote was taken out of context and does not provide any assistance in showing public interest.

15.Secondly, I disagree with Mr Tam that this application, which clarified the rules and regulations applicable to LU’s election, would benefit other public universities with similar governing structures.  Indeed, as pointed out by Mr Lui, the main issues considered in this application (i.e. the interpretation of Regulations 4.1 and 7.2) were mostly factual.  The Ordinances cited by Mr Tam do not provide much support for the idea that my interpretation of Regulations 4.1 and 7.2 would really assist any interpretation of electoral rules and regulations in relation to other universities (which, I note, were not cited in Mr Tam’s written submissions).

16.Mr Tam cited §50 of the Judgment in support of his submission.  But, in that paragraph, I merely acknowledged that the powers of the Court, Council and Senate of LU were found in the Ordinance and in the statutes, which meant that the case fell within the public law sphere, and the impugned decisions were hence amenable to judicial review.  It is not convincing to say that by virtue of university governing bodies having power derived from statute, that the same interpretations of electoral regulations which apply to LU would necessarily apply to the electoral regulations of other university governing bodies, which may well be very different.

17.Similarly, I do not accept Mr Tam’s submission that the Judgment contributed to the proper understanding of the law by clarifying how the right to be heard applies in the context of university elections.  At §79-92 of the Judgment, I simply cited the principles established by the Court of Final Appeal in Lau Siu Lai v Kwok Wai Fun Franco (Returning Officer) (2020) 23 HKCFAR 338 in relation to the Court’s approach in determining “materiality” in an allegation of procedural impropriety (which were made in the context of the Legislative Council elections), and applied those principles directly to the Applicant’s factual situation.  I do not think that the Judgment contributed in any significant way to a more general understanding of the law.

18.As regards the third criterion of the Applicant’s potential private gain in the outcome, I acknowledge that in the event the Applicant graduated in that academic year, he would not be eligible to run in a by-election.  However, I accept Mr Lui’s submission that the relief pleaded by the Applicant in the Form 86 appears to be self-serving.  Whilst Mr Tam is correct in stating that where an election was procedurally unfair or impartial, an order of mandamus to organise a by-election might be beneficial to the undergraduate community as a whole, in view of the overall context of the case I do not think that this is a situation where the Applicant was bringing these proceedings in an entirely unselfish, altruistic manner.

19.As I noted at §77 of the Judgment, these proceedings arose out of a situation where the Applicant could have fully resolved the matter prior to disobeying the instructions, but simply chose not to do so, seemingly on the basis that he did not like the instructions or thought them unnecessary.  In my view, this was a case where the Applicant felt personally aggrieved by his own disqualification from the election, and pursued these proceedings to quash the Decisions and organise a by-election.

20.Further, I also accept Mr Lui’s submission that, from the content of the affirmation of the Applicant’s peer Kwong Ngo Hin Oscar, the Applicant had (or at least appeared to have) the intention to enable Kwong to run in the by-election on his behalf, in the event that he had already graduated by the time of the by-election.

21.I do not find the issues raised by the Applicant qualitatively significant.  Thus, I do not think that the criteria of ‘public interest litigation’ are made out – certainly not to the extent that justifies an exceptional departure from the general rule.

D.   Merits of the Application

22.The failure to meet the ‘public interest litigation’ criteria, in itself, is sufficient to warrant a dismissal of the costs variation application.  However, I think that even if the criteria were met, on an examination of the other factors, I would not exercise my discretion to depart from the usual position of the Court that costs follow the event.

23.As previously mentioned, it is trite that a lack of merits will rarely save a party from an adverse order for costs, regardless of how important the issue may be in a public interest litigation case.

24.Mr Tam submitted in relation to its merits that whilst I only accepted Ground 3 to be reasonably arguable, Ground 3 shared the same premise as Ground  2, and that the two grounds were all along considered in a “part-and-parcel manner” by all parties. He contended that I accepted Grounds 1 and 4 “to a certain extent”, seen by the finding that the purpose of the EO meeting was to notify the Applicant of disqualification (and not for him to defend himself) and the statement that there is a public interest in relation to advertising.  He also added that although I rejected Grounds 5 and 6, I did not need to spend significant resources into analysing them given that they were intertwined with Ground 3.

25.In response, Mr Lui argued that the challenge had no merit – especially given that all six intended grounds of review pleaded failed, even largely to the extent that the Court refused to grant leave.  He argued that the Applicant is “grasping at straws” to rely on my observation that Ground 3 was reasonably arguable, which did not salvage the claim.  He also added that Grounds 4 to 6 were only briefly dealt with by this Court due to the fact that they had no merit, and that Grounds 5 and 6 were basically a repeat of the other grounds.

26.On balance, I tend to agree with Mr Lui.  Although I made the finding that Ground 3 may have been reasonably arguable, I did not find sufficient substantive merit.  I agreed with the EO’s interpretation of the Regulations, and also found that the EO did not amend the Regulations, or otherwise, act ultra vires: see §74-76 of the Judgment.  I also did not in fact accept Grounds 1 and 4 “to a certain extent”.  That it was clear that the purpose of the EO meeting was to notify the Applicant of the disqualification decision (see §37 of the Judgment) did not mean I found any merit in the grounds.  Further, the substance of Grounds 5 and 6 were essentially a repeat of the previous grounds (despite Ground 5 targeting the Council’s decision).

27.I do not think there was sufficient merit in the application so as to justify departure from the general rule.  As has been said frequently, it is not in the public interest to fund the costs of proceedings with respect to arguments which, having no real prospect of success, did not satisfy the threshold required for the granting of leave to apply for judicial review.  I would also note, for the sake of completeness but not for determinative reasons, that the Applicant clearly has some financial means, which is evident from the number of Counsel involved.

E.   Result

28.I dismiss the application for variation of the costs order nisi.  The order becomes absolute.

29.But in the overall exercise of my discretion, I make no order as to costs in relation to this variation application.

Mr Jeffrey Tam, Mr Albert Wan and Ms Yvonne Leung, instructed by Ho Kan Lawyers, for the applicant

Mr Mike Lui SC, Mr Jimmy Ma and Mr Alexander Burg, instructed by Grandall Zimmern Law Firm, for the putative respondents