Mok Charles Peter v. Tam Wai Ho and Another

FACV No. 8 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2010 (CIVIL)

(ON APPEAL FROM CACV NO. 115 OF 2009)

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JUDGMENT ON COSTS

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Chief Justice Ma:

1.This is the judgment of the Court on costs.  The present proceedings involve an election petition which was lodged by the petitioner against the first respondent.  The petition was dismissed by Reyes J on 9 April 2009.  The petitioner’s appeal from this decision was dismissed by the Court of Appeal on 3 December 2009 on the basis that an appeal was not possible by reason of the finality provision contained in s. 67(3) of the Legislative Council Ordinance Cap. 542 (“the LCO”).  The appeal from Reyes J’s decision was accordingly not heard on the merits.  The petitioner then appealed to this Court.

2.On 13 December 2010, judgment was handed down allowing the petitioner’s appeal.  A declaration was made that s. 67(3) of the LCO, insofar as it provided for finality of determination by the Court of First Instance after the trial of an election petition, was unconstitutional and invalid.  The consequence, as is clear from the judgment, was that the matter had therefore to be heard on the merits by the Court of Appeal.

3.In addition, the Court made the following order nisi as to costs, namely that:-

(1) The costs of the petitioner before the Court and in the Court of Appeal should be paid by the first respondent, such costs to be taxed if not agreed; and

(2) No order for costs was made regarding the intervener.

Any party wishing to contend for a different order was invited to do so by lodging written submissions within 14 days of the handing down of the judgment.  The first respondent has done so and seeks to vary the costs order nisi.

4.The first respondent submits that the proper order for costs should be either no order as to costs or costs in the cause (the cause being the determination on the merits by the Court of Appeal).  Both parties are agreed that the costs with which we are concerned cover the following:-

(1) The costs before the Court of Appeal (on appeal from the said decision of Reyes J).  When it dismissed the petitioner’s appeal on 3 December 2009, the Court of Appeal ordered the petitioner to pay the first respondent’s costs with a certificate for the 2 counsel.

(2) The costs before the Court of Appeal on the application for leave to appeal to the Court of Final Appeal.  When the Court of Appeal dismissed the application on 13 May 2010, costs were also ordered against the petitioner in favour of the first respondent.

(3) The costs of the hearing on 2 June 2010 when leave to appeal to the Court of Final Appeal was granted by the Appeal Committee.

(4) The costs of the appeal before us.

5.The first respondent advances the following arguments in support of his contention that the order nisi as to costs should be varied:-

(1) The only issue before the Court of Appeal and the Court of Final Appeal was one of jurisdiction.  Until s. 67(3) of the LCO was declared invalid, the Court of Appeal had no jurisdiction to entertain the petitioner’s appeal.  The first respondent makes the point that since the petitioner would in any event have had to go to court to argue the constitutionality of that provision, it was unfair for the first respondent to have to bear the petitioner’s costs.  The first respondent also points out that in a matter concerning the jurisdiction of the court, the parties could not consent to confer jurisdiction when none existed.

(2) The first respondent ought not be penalized in costs when the proper procedure by which a constitutional challenge to the validity of legislation should be made, was by way of judicial review.  The petitioner did not institute judicial review proceedings.  Reliance was here placed on certain observations made by the Court of Appeal in Leung v Secretary for Justice [2006] 4 HKLRD 211 to the effect that where a challenge is sought to be made as to the constitutionality of legislation, this was a “quintessential” situation for the judicial review procedure to be used: at 222J-223A (para. 21).  It is important, though, to set out the context of that passage:

“20. Unlike some other jurisdictions, Hong Kong does not have a constitutional court or some such equivalent which is charged specifically with the responsibility of adjudicating on constitutional challenges. The ordinary courts have to deal with constitutional challenges in the same way as it deals with other types of disputes that come before it. Constitutional challenges therefore have to be fitted into the existing framework as permitted by the procedural rules governing proceedings in Hong Kong (be they civil or criminal). The present case involves civil proceedings although the subject matter is a criminal statute.

21. Where what is sought is a declaration that a statute or statutory provision is unconstitutional, the most suitable proceedings would be judicial review proceedings, which constitute the form of proceedings on the whole most appropriate for public law cases.  The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.  As a general rule, where the subject matter of an action involves public law, judicial review proceedings should be the norm.  And where a challenge to the constitutionality of legislation is made, one would have thought this to be a quintessential situation for the judicial review procedure to be utilized...”

(3) It was further submitted that had the judicial review procedure been utilized by the petitioner, the respondent in those proceedings would then have been the Secretary for Justice (representing the Government) and in the event of an adverse decision, costs would have been borne by that respondent alone.

(4) Lastly, it was submitted that in the same way as no order as to costs was made in relation to the intervener, there was no reason why the same order ought not be made regarding the first respondent.  It was pointed out that both the intervener and the first respondent had adopted the same stance.

6.In our judgment, there is no reason why costs should not follow the event in the present appeal.  The first respondent and the intervener argued against the petitioner’s position, and the petitioner has been successful.  In the normal course of events, both the first respondent and the intervener would have had to bear the petitioner’s costs.  In the present case, however, the effect of the consent order made on 18 March 2010 when leave to intervene was given to the Secretary for Justice, was that no order of costs should be made in relation to the intervener in this appeal (and this is reflected in the costs order nisi). This therefore left the first respondent, but as far as he was concerned, there was neither an order nor an agreement that in the event he argued unsuccessfully against the petitioner, a similar order for costs would be made.  It should also be observed here that when the petitioner’s arguments on the constitutionality of s. 67(3) of the LCO were unsuccessful before the Court of Appeal, an order for costs was made against the petitioner in favour of the first respondent (see para. 4(1) above).

7.None of the arguments refer to in para. 5 above detract from what we see to be the proper order for costs:-

(1) It is correct that the question before us was one of jurisdiction.  It is also correct that in any event, the petitioner did have to come to court to have that issue resolved (it not being possible for parties to agree on conferring jurisdiction on a court when jurisdiction does not exist).  Until s. 67(3) of the LCO was declared to be unconstitutional and invalid, it deprived the Court of Appeal of the jurisdiction to entertain the petitioner’s appeal from Reyes J’s decision.  All the above accepted, however, the first respondent chose, instead of adopting a neutral stance, to argue against the petitioner on the constitutionality issue.  This was despite the presence of the Secretary for Justice (the intervener) who intervened solely for the purpose of making submissions on the constitutionality issue.  In the same way that the first respondent was awarded his costs before the Court of Appeal (see para. 4(1) above) when the petitioner was unsuccessful there, he was at risk as to costs in the event he took an active part in the appeal before this Court and was unsuccessful.

(2) Challenges to the constitutionality of legislation are of course commonly made in judicial review proceedings. Where the only subject matter of the proceedings is a challenge to the constitutionality of legislation (as in Leung) or where the decision of a public body is involved, judicial review proceedings are of course the most appropriate.  The passages from Leung (set out in para. 5(2) above) make this clear.  However, it must also be recognized that constitutional challenges to legislation can be made in the course of other types of proceedings.  Indeed, in Leung, reference was made to the possibility of raising such challenges in the context of criminal proceedings: at 224F (para. 24). It should further be pointed out that when the constitutional challenge was made in the present case by the petitioner, no objection was taken by the first respondent as to the appropriateness of the procedure adopted by the petitioner.  Indeed, it would have been extremely undesirable and cumbersome if separate judicial proceedings had been instituted (even if this had been permitted).

(3) If judicial review proceedings had been instituted by the petitioner, even on this hypothetical basis, it would have been likely that the first respondent would have joined in as an interested party (given the stance he has in fact taken in arguing the constitutionality issue).

(4) Although the first respondent adopted a similar stance in the Court of Appeal and before us to that of the intervener, unlike the latter, the first respondent neither sought nor obtained an order regarding his costs beforehand.  Moreover, it could not be said that the first respondent was acting in a capacity similar to that of an amicus curiae – far from it, he has been (and remains) the petitioner’s adversary throughout these proceedings.

8.In relation to the contention that the proper order for costs should, in the alternative, be costs in the cause, the first respondent also contends that the true dispute between him and the petitioner has always been whether (as alleged by the petitioner) the first respondent has engaged in illegal and corrupt conduct during the 2008 elections to the Legislative Council.  He submits that the constitutionality issue was never the focus of the dispute.  This can be accepted but nevertheless, as observed earlier, the first respondent chose to adopt an adversarial stance in the determination of the constitutional issue, instead of a neutral one.

9.For the above reasons, the application to vary the costs order nisi is dismissed with costs.

Written submissions by Mr Martin Lee SC, Mr Hectar Pun and Mr Lee Siu-him (instructed by Messrs Ho, Tse, Wai & Partners) for the appellant

Written submissions by Ms Teresa Wu (instructed by Messrs DLA Piper) for the 1st respondent