Lo Siu Lan v. Hong Kong Housing Authority

CACV 378/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 378 OF 2004

(ON APPEAL FROM HCAL NO.154 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Le Pichon JJA

Date of Written Submissions as to Costs : 24 January 2005, 7 February 2005 and 18 February 2005

Date of Handing Down Decision on Costs :  1 March 2005

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DECISION ON COSTS

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Hon Ma CJHC :

1.On 8 December 2004, the Applicants issued a notice for leave to apply for judicial review in relation to the proposed sale by the Respondent of certain retail and car parking facilities in public housing estates.  This sale was directly relevant to an offer made by the Respondent to the public, both in Hong Kong and internationally, of units in a trust called the Link Real Estate Investment Trust (“REIT”).  Hartmann J heard the application for leave and the substantive application itself in a rolled up hearing over the course of 13 and 14 December 2004.

2.The Judge adopted the procedure of a rolled up hearing (at which both the Applicants and the Respondent were present) in view of the urgency of the situation facing the Court at the time.  The Judge held in favour of the Respondent and dismissed the application for judicial review.  In a judgment handed down on 15 December 2004, the Judge recorded the Applicants as not only having satisfied the test for leave in R v Director of Immigration, ex parte Ho Ming Sai (1993) 3 HKPLR 157, but that he was satisfied they had “presented a strongly arguable case”.  Though the application for judicial review was brought late in the day and notwithstanding the Respondent’s submissions that there had been undue delay and even abuse on the Applicants’ part, Hartmann J declined to accede to these submissions.

3.In the judgment, in relation to costs, the Judge merely said that he had already earlier dealt with this.  I have read the parties’ note of what the Judge said about costs at the conclusion of the hearing on 14 December 2004.  He arrived at his order that there should be no order as to costs (even though he had held against the Applicants) essentially, I think, for the following reasons : -

(1)	So far as that part of the hearing relating to the leave application was concerned, it was strictly speaking an ex parte one and the Respondent was therefore only present by way of an indulgence granted to it by the Court.
(2)	As far as the substantive application was concerned, this was, as the Respondent correctly submitted in its written submissions, an inter partes one.  However, given the immense public interest involved in the judicial review application, the Judge was of the view that it would not be right to impose an order for costs against the Applicants.

4.For my part, I see nowhere that the Judge has erred in the exercise of his discretion.  The case before him was one that attracted immense public interest both within Hong Kong and internationally.  The Applicants were testing the legality of a scheme that had hitherto not been tested.  And, I would reiterate, the Judge regarded the Applicants’ arguments as being “strongly arguable”.  He also had this to say in respect of the issue of the interpretation of the Housing Ordinance, Cap.283 (this issue being central to the question of whether the Respondent had acted ultra vires in selling the said retail and car parking facilities) : -

“In fact, I go so far as to say that I found the central issue of interpretation to be far from easy.  The Authority [the Respondent], it seems to me, was bold indeed – some might use a different description – to embark on such a massive privatisation of its commercial assets without the assurance of a firmer legislative base.”

5.Only the 1st Applicant pursued an appeal to this Court.  The appeal was heard and determined on 16 December 2004, with the Reasons for Judgment handed down the next day.  The question of costs both here and below were left open at the conclusion of the hearing and the parties were invited to provide written submissions in relation to this issue.

6.The Applicants before Hartmann J and the 1st Applicant before us are seeking to have determined by the courts the critical question of the legality of the whole REIT scheme.  This is of great importance to the community.  The Respondent equally recognizes this.  Its actions in continually emphasizing to the courts the urgency of the whole matter are an express recognition of this public interest.

7.In my view, the public interest factor is also a powerful one to be taken into account as far as the costs of the appeal are concerned.  Regarding the judgment of this Court, although the appeal from the 1st Applicant was dismissed, the Court : -

(1)	whatever its misgivings, did not overturn the Judge’s ruling on the issue of delay;
(2)	certainly did not regard the 1st Applicant’s arguments as being without any substance whatsoever.  Le Pichon JA said this at the conclusion of her judgment : -

“In the event, absent the assistance I had hoped would be available and under the time constraints obtaining, I agree that the appeal should be dismissed for the reasons given by the Chief Judge but it is a decision that I have reached with considerable hesitation and reluctance.”

8.This passage also makes reference to another aspect that I regard as being relevant to the question of costs.  The time frame for the judicial review proceedings and the appeal therefrom to the Court of Appeal has been considerably condensed.  There are not many cases that have gone through concluded hearings before the Court of First Instance and the Court of Appeal within 10 days of the institution of proceedings.  Even an abridgment of time on the 1st Applicant’s right to appeal to the Court of Appeal was ordered and this, as the judgment of this Court stated, was an exceptional order.  In a sense, it could be said that the Respondent has been the recipient of an indulgence from the Court.  I recognize of course the pressure that the Respondent was coming under from the public to move things along.  However, all things considered, the fair order in the appeal is also that there be no order as to costs with the consequence that each side is to bear its own costs.  This is not to say that in all public law cases, such an order will always be appropriate but it is the right one in the present proceedings.

Hon Stock JA :

9.I agree.

Hon Le Pichon JA :

10.I agree.

Messrs Barnes & Daly for the 1st Applicant

Messrs Clifford Chance for the Respondent