The Government of the HKSAR v. Michael Reid Scott

FACV No. 16 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 2004 (CIVIL)

(ON APPEAL FROM CACV NO. 401 OF 2003)

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Between :

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FACV No. 8 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2005 (CIVIL)

(ON APPEAL FROM HCAL NO. 38 OF 2004)

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Between :

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Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of judgment: 12 June 2006

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JUDGMENT ON COSTS

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Chief Justice Li:

1.By its Decision dated 6 April 2006 ("the Decision"), the Court dismissed Mr Scott's notices of motion in FACV No. 16 of 2004 and in FACV No. 8 of 2005 taken out on 14 February 2006 ("Mr Scott's motions") seeking to re-open the Court's judgment handed down on 13 July 2005 in these appeals.  Pursuant to the Court's directions, the parties have lodged written submissions on costs : Mr Scott's submissions dated 3 May, the Government's submissions dated 17 May and Mr Scott's supplemental submissions dated 18 May as amended on 26 May.

2.The Government seeks an order for costs to be taxed alternatively an order for costs in the sum of $39,206 without the need for taxation.  Mr Scott submits that no order for costs should be made.

3.The Court's powers on disposal of an appeal, including making orders as to costs, is provided for in s.17(1) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 ("the Ordinance") in these terms :

"The Court may confirm, reverse or vary the decision of the court from which the appeal lies or may remit the matter with its opinion thereon to that court, or may make such other order in the matter, including any order as to costs, as it thinks fit."

Section 43(1) further provides :

"Costs, including costs in the courts below or before a magistrate, shall be paid by such party or person as the Court shall order, and such costs shall be taxed by the Registrar, or some other officer of the Court to whom the Registrar may delegate this function."

4.The issue whether the Court has the jurisdiction to make any costs order in the present circumstances must first be addressed.  Mr Scott maintains that it does not.  He submits that his notices of motion seeking to re-open merely represented an attempt to initiate actual proceedings for the purpose of re-visiting the appeals.  That attempt having failed, there are no actual proceedings on which an order for costs could fasten.

5.This argument must be rejected.  The appeals before the Court are the appeals in FACV No.16 of 2004 and FACV No.8 of 2005.  Although judgment has been delivered in these appeals, the position remains that Mr Scott's notices of motion seeking to re-open that judgment were and could only be taken out in those appeals.  In dismissing them, the Court plainly has the jurisdiction to make an appropriate order for costs.

6.It is a matter for the Court's discretion as to what, if any, is the proper costs order to make.  When the Court disposed of the appeals, it made no order as to costs in relation to the proceedings in the Court and in the courts below "in view of the desirability in the public interest of clarifying the important issues in these cases".  Secretary for Justice v. Lau Kwok Fai and Another (2005) 8 HKCFAR 304 at para.86.  However, in relation to Mr Scott's motions, no similar consideration applies.  In dismissing them, the Court made plain that Mr Scott's grounds in support of re-opening the matter "are obviously and utterly devoid of merit".  As a matter of discretion, the Court should allow costs to follow the event and order costs to be paid by Mr Scott.

7.Mr Scott, relying on s.43 of the Ordinance, submits that if the Court makes an order for costs against him, the costs must be taxed.  And it is not open to the Court to award a fixed sum without the need for taxation.

8.Section 43 provides that "costs … shall be paid by such party … as the Court shall order and such costs shall be taxed by the Registrar …".  This section must be construed in the context of s.17 relating to the Court's powers in the disposal of an appeal.  After providing for confirmation, reversal or variation of the decision of the lower court and remittal to it, it further provides that the Court "may make such other order in the matter, including any order as to costs, as it thinks fit".  The Court may therefore make any order as to costs as it thinks fit.  The provision confers on the Court a wide discretion as to the costs orders that may be made.  These include not only an order that costs be paid wholly or partly by a party but also an order that costs in a fixed sum be paid by a party.  It is only where the Court makes a costs order against a party of the former kind to which s.43 applies and the costs must be taxed pursuant to that section.  Section 43 does not apply to an order for costs in a fixed sum.  In this event, there is obviously no need for any taxation of costs.  Section 43 is not intended to cut down the broad power as to costs contained in s.17.

9.Further, s.43 supplements the general power conferred by s.17 on the Court to make any order as to costs as it thinks fit by making it clear that such power extends to the costs of the courts below.  Section 43 provides that such costs shall be taxed by the Registrar, or some other officer of the Court to whom the Registrar may delegate this function (who is defined in s.2 as the Registrar of the Court).  It therefore makes clear that taxation of the costs in the courts below should be dealt with at the level of the Court.  This avoids any need for taxation by different taxing officers in each of the lower courts.

10.Accordingly, it is open to the Court to order Mr Scott to pay costs in a fixed sum.  The Government claims costs in the sum of $39,206.  The items claimed and the amounts for each item have been set out with particulars.  The Court considers that the costs claimed are reasonable.  In the circumstances of this case, the Court considers it appropriate to award costs in a fixed sum and orders Mr Scott to pay costs in the fixed sum of $39,206.

Written submissions from the appellant

Written submissions from the respondent