M.P. No. 718 of 1991 v M.P. No. 3480 of 1990

HCMP000720A/1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Kaplan in Court

Date of Hearing: 22 April 1991

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Reasons for Costs Order

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1. Each applicant Commenced three sets of proceedings. Firstly, there was the application for habeas corpus. I granted this application and awarded costs against the Attorney General. There was nothing in the court below in relation to habeas corpus and therefore the only costs relevant are those before me. It was agreed that David CHIU's costs would be with a certificate for three counsel and Deacon CHIU's would be with a certificate for two counsel.

2. During the course of the proceedings before me, I gave leave to both applicants to claim an injunction under section 21J of the Supreme Court Ordinance. I did so on the basis that I would only be inclined to grant a declaration in lieu of an injunction if I found for the applicants. I have so found and I made such a declaration. The costs of those proceedings should also be against the Attorney General with the same certificates for counsel and again there can be no question of any costs below.

3. Also listed before me was an application by both applicants for judicial review of the decision made by Mr. Line in October 1990 refusing the applicants a stay of the criminal proceedings. Those proceedings were amended, with leave, to enable the applicants to contend that Mr. Line's appointment was invalid, and that his order refusing the stay should be quashed. I granted that application. Thus the only matter in relation to the judicial review proceedings that I considered was that part which related to Mr. Line's appointment.

4. Both applicants asked for all of the costs before Mr.Line as well as all the costs before me  to include the costs incurred in respect of the days reserved which were not in the end utilized.

5. The order I made was that the applicants should have the costs before me of the judicial review proceedings limited to the point relating to the invalidity of Mr.Line's appointment. I refused to award costs below.

6. My reasons for doing so were quite simply that the applicants could have, and should have, taken this point when they were before Mr. Line last September or perhaps even before that date. The article in the Hong Kong Law Journal, which Mr. Keane relied upon so heavily, was published in 1989 and received extensive coverage in the English language newspapers. During the course of his argument; Mr. Keane attempted to submit that because the point was so notorious, Mr. Line's appointment lacked any "colour". But the point was not taken before Mr. Line in September or October 1990 and was only taken in March this year shortly before I was about to embark upon the judicial review proceedings which went solely to the question of delay and prejudice. Had the point as to invalidity of appointment been taken in September or October, the judicial review proceedings would not have been necessary. The applicants could have applied for habeas corpus, as in fact they did, alternatively or additionally, they could have applied for an injunction under section 21J, as in fact they did. It seems to me unjust that the Attorney General should have to bear the costs of proceedings in the magistrate's court and in the High Court in respect of an application which proved to be wholly unnecessary in the circumstances. It seems to me that justice will be done between the parties by giving the applicants all the costs of the injunctive proceedings, and all the costs of the habeas corpus proceedings and giving them their costs of the judicial review proceedings relative to the appointment point.

7. Both applicants also applied for leave to appeal against my costs order. I refused leave to appeal. They are entitled to seek leave from the Court of Appeal.