Leung Kwok-hung v. Clerk To the Legislative Council

HCAL 112/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.112 OF 2004

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BETWEEN

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Before: Hon Hartmann J in Court

Date of Hearing: 5 October 2004

Date of Handing Down Ruling: 13 October 2004

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RULING AS TO COSTS

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1.On 4 October 2004, some 48 hours before he was due to take his oath of office as a Legislative Councillor, the applicant came to this court seeking leave to apply for judicial review.  He did so essentially to obtain a declaration that, in taking his oath, he would not be constrained by the form of words laid down in the Oaths and Declarations Ordinance, Cap.11, but would be entitled in law to swear an oath that made mention of certain political principles espoused by him.

2.The application for leave at least, if it was to be determined before the applicant was called upon to take his oath, had to be dealt with as a matter of urgency.  The application, however, concerned issues which were of considerable constitutional significance.  As I saw it, what lay for determination, potentially at least, were matters not simply of outward form but matters which went to the integrity of the workings of our legislature.  For that reason, in directing that there should be an expedited hearing of the application for leave, I directed that the respondent, the Clerk to the Legislative Council, be given leave, if he deemed it appropriate, to be represented at the hearing in order to render such assistance to me as I deemed fit.

3.In the event, the respondent was represented at the hearing, his counsel being Mr Kenneth Kwok SC.  Mr Kwok’s assistance, in so far as I sought it, was invaluable.

4.On the morning after the hearing, I delivered judgment dismissing the application for leave.  Following upon my judgment, Mr Kwok informed me that he was instructed to apply for costs.

5.The applicant opposed the application.  He said that he had brought his application for leave not simply for himself but on behalf of those many thousands of voters who had elected him.  He had been elected by those voters, he said, on the promise that he would champion “the people of China and the residents of Hong Kong” and would act according to the principles of “democracy, justice, human rights and freedom”.  Those were the very things that he wished to incorporate into his oath of office.  Why should he not therefore, in his capacity as a Councillor-elect, seek to know whether the law permitted him to do so?  These after all were the principles that would guide him in the execution of his public mandate.  Why now, he asked, when the law was stated, should he bear a penalty of costs that may bankrupt him and force his removal from the Legislative Council?  If some token was required, said the applicant, then he should be ordered to pay costs of one dollar.

6.In respect of costs, it is fundamental that costs lie always in the discretion of the court.  But, having said that, costs should normally follow the event except where it appears to the court that in the circumstances of the case some other order should be made.

7.In the present case, although it has not been the easiest decision, I have resolved that the appropriate order to make is one which results in each party bearing their own costs, neither being able to look to the other for payment.  The order will therefore be one of ‘no order as to costs’.  My reasons for making this order may briefly be stated as follows.

8.The application for leave was made pursuant to O.53, r.3 of the Rules of the High Court and was therefore, in terms of O.53, r.3(2), an ex parte application.  If I had determined the application without a hearing, if I had determined it and dismissed it on the papers only, as I was permitted to do in terms of O.53, r.3(3), the applicant would have been left with his own wasted costs but no obligation to meet the costs of the potential respondent.

9.As it was, because of the constitutional issues at stake, while it was within my discretion to direct that there be an ex parte hearing only, I concluded that the respondent should be given leave to be represented at the hearing so that, if necessary, I could be assisted in respect of those constitutional issues; issues, of course, which went to the integrity of the workings of the Legislative Council.  The respondent was not obliged to appear or be represented but chose to be represented.  In my view, it is manifest that he made the choice not in order to protect his own position but in the broader public interest in order to ensure that the new Legislative Council could be sworn in and be able to set about its duties in accordance with law.

10.Often, of course, when a respondent comes forward at the leave stage to assist the court, it will be entitled to costs.  Any applicant seeking leave must be aware of that risk.

11.In the present case, however, as I see it, the respondent chose to be represented in the public interest to ensure the integrity of Legislative Council proceedings.  Equally, however, I am satisfied that the applicant brought his application in the public interest, as he saw it, albeit from a radical viewpoint, to secure if possible the right of elected members to incorporate into their oath of office a statement of the principles by which they intend to be guided in the execution of their office.

12.If an application for judicial review is instituted in the public interest, often as a test case, so that the law may be clarified, and if that clarification will benefit a large class of persons or the public generally then, as I understand the law, those circumstances may warrant a court in making an order that does not follow the event.

13.That does not mean, of course, that all public law challenges which relate to constitutional issues bring with them a protection against any adverse order for costs.  Each case will depend on its own circumstances.  What must always be remembered is that, when a public body, such as the Legislative Council, is made the subject of legal challenge, it may well have to expend costs in defending its position and such costs, as in the present case, must come from public funds; put bluntly, from the pockets of Hong Kong tax payers.

14.In the present case, however, I am satisfied that the applicant did seek to bring a public interest challenge in its proper sense.  The essential characteristics of such a challenge are not only that issues of general public importance are raised but that the applicant should have no private interest in the outcome : in this regard, see R v. Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 WLR 347, at 353.

15.Whatever may be the settled position in other jurisdictions, in a free society such as Hong Kong where many shades of political opinion are protected, the issue of whether guiding political, religious or philosophical principles can be incorporated into a Legislative Councillor’s oath of office has not been firmly settled in law by a decision of our courts.  It must, therefore, I believe, be an issue of general public importance.  Hong Kong under the Basic Law is developing constitutionally, it is no longer simply a mirror of long-settled British constitutional principles.

16.Nor, in my opinion, can it be said that the applicant in this case had any private interest in the outcome.  He was not looking to protect any financial interest or to secure himself in office.  As a politician no doubt he was looking for some political advantage.  But what was that advantage?  I am unable to say it was self-aggrandisement.  The advantage he sought was no more than the ability to swear allegiance in a solemn public forum to principles he has claimed should be universally recognised and to do so, as he saw it, because it was a proclamation born of the expectations of those who brought him to office.

17.If I believed that the applicant had instituted his application for purely tactical purposes; in order, that is, to build himself a political stage, my view as to costs would no doubt have been different.  Our courts jealously guard their integrity.  Legal process is not to be abused.  But the applicant, I am content to say, did no more than argue his points of law as he understood them.  While I may have come to a finding that they did not constitute an arguable case, that is not to say that I considered them foolish or vexatious.

18.Yes, the application was made late in the day.  But, of course, between the applicant being elected and assuming office, time parameters were never generous.

19.In summary, I am of the view that, in the broader public interest as he saw it, the applicant sought guidance from this court and did so altruistically without any intention of undermining the court’s process.

20.For the reasons given therefore, there will be no order as to costs.  The applicant will meet his own costs but will have no obligation in costs to the respondent.

Applicant, in person, present

Mr Kenneth Kwok, SC instructed by Messrs Wilkinson & Grist, for the Respondent

Mr Daniel Fung, SC leading Mr Johnny Ma, instructed by Department of Justice, for the Interested Party