Ming Pao Newspapers Ltd v. Obscene Articles Tribunal

HCAL 96 & 101/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 96 OF 2007

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BETWEEN

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 101 OF 2007

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BETWEEN

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(Heard Together)

Before: Hon Lam J in Court

Last Date of filing of Written Submission on Costs: 10 December 2008

Date of Judgment on Costs: 9 January 2009

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JUDGMENT  ON  COSTS

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1.The Respondent did not take any active part in the proceedings.  Nor do I think this is a case of flagrant improper behaviour on the part of the tribunal.  The interested party, TELA resisted the application for judicial review and if justice demands, TELA instead of the Respondent could meet the costs liability towards the Applicants.  Applying the principles set out in R (Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543 at p.557-8 para.47, this court should not order costs against the Respondent.

2.I turn to the submissions of the Applicants that costs should be awarded against TELA.  It is common ground that the starting point is costs should follow event unless the court is satisfied there are good reasons which call for a different order to be made.  Mr Zervos resisted costs against TELA on the following grounds,

(a)  TELA was acting in the public interest and its involvement in the judicial review was analogous to that of an inferior tribunal rendering assistance to the court as a neutral party by making submissions on question of jurisdiction, procedure and specialist case law;

(b)  The determinative issue was raised by the court instead of the Applicants;

(c)  The Applicants failed on some of the issues raised by them and costs should be apportioned.

3.I do not regard TELA as playing a role akin to that of an amicus.  I agree with the submission of the Applicants that TELA acted effectively as the respondent in resisting the applications for judicial review.  In this connection, the application by TELA to set aside leave speaks for itself.

4.Whilst it may be said that TELA was acting all along in what may quite properly be regarded as the discharge of its public duties in resisting the applications, the same can be said in respect of most respondents to judicial review applications.  As far as I am aware, this has never been regarded as a reason for exonerating public authorities from any potential liabilities as to costs when an administrative decision is successfully challenged in judicial review.

5.I acknowledge it is helpful to have an active party arguing the case instead of leaving the applications uncontested in view of the stance taken by the Respondent.  Thus, the appearance of TELA in the proceedings and the submissions of Mr Zervos did contribute to this court’s analysis of the issues.  However, nowadays public authorities should regard it as part of their public duty to participate in judicial review proceedings when an administrative decision is being challenged.  If that were so, I see no reason why such duty should not be extended to meet the costs of a successful applicant.  After all, judicial review is a manifestation of the rule of law in the context of good public administration.

6.It does not matter that the decision challenged was that of the Respondent instead of that of TELA.  As Mr Zervos pointed out, TELA appeared because of the stance adopted by the Respondent.  By not appearing and indicating that it would abide by the decision of this court, the Respondent followed the principles set out in Nattrass v The Attorney General HCMP 2337 of 1995 and Dato Tan Leong Min v The Insider Dealing Tribunal [1999] 2 HKC 83.  In such circumstances, it behoved TELA to participate in the judicial review in the discharge of its public duty.  Having done so, it follows that TELA should be subject to the potential liability as to costs as it has been the respondent in substance.

7.Turning to the argument about the key issue being raised by this court, I agree with the Applicants that the key issue has in fact been raised in the respective Form 86A.  Though the argument presented at the oral hearing did not focus on the same, as I have indicated in my comments when I invited supplemental submissions in the letter of 26 September 2008, the key issue is inseparable from the duty of identification relied upon by the Applicants.

8.I do not regard this as a case where the Applicants won by accident on a point raised by the court alone.

9.The third ground of Mr Zervos hinges upon the application of the principles set out in Elgindata No.2 [1992] 1 WLR 1207 at 1214.  This is not a case where the Applicants succeed in respect of the challenge of some decisions of the Tribunal and fail in respect of others.  They are successful in respect of all the decisions challenged.  Thus, with respect, Mr Zervos cannot rely on Thomas Vincent v South China Morning Post (No 2) [2004] 3 HKLRD 471.

10.The relevant principles are (iii) and (iv) in the judgment of Nourse LJ in Elgindata No.2 [1992] 1 WLR 1207 at 1214.  The crucial question is whether the Applicants make allegations on which he fails that has caused a significant increase in the length or costs of the proceedings and make allegations improperly or unreasonably.

11.Even though some of the arguments raised by the Applicants are rejected by this court, I do not think those arguments were advanced improperly or unreasonably.  Nor did such arguments cause a significant increase in the length or costs of the proceedings.

12.In the circumstances, there is no justification for departure from the general rule of costs following event.

13.I therefore vary my costs order nisi by setting aside the order for costs against the Respondent.  Instead I make a costs order that TELA, the interested party, shall bear the costs of the Applicants, such costs to be taxed if not agreed.

14.I also order in HCAL 101 of 2007 that the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Jeremy Chan & Ms Jocelyn Leung, instructed by Messrs JSM, for the Applicant (HCAL 96/2007)

Mr Erik Shum & Ms Linda Wong, instructed by Messrs Tang, Wong & Chow (D.L.A.), for the Applicant (HCAL 101/2007)

Mr Kevin P Zervos, SC, Ms Anthea Pang & Mr Simon N M Young, instructed by Department of Justice, for the Commissioner for Television & Entertainment Licensing (HCAL 96/2007 & HCAL 101/2007)