Chan Mei Yiu, Paddy and Another v. Secretary for Justice and Others
Read the full judgment text of HCAL 16/2007 on BabelCite. This High Court CFI judgment was delivered on 9 March 2011.
1. On 9 December 2010, I handed down a decision in this matter on the question of costs. Subsequently, I learned, for the reasons outlined by me to the parties in Chambers on 14 December 2010, that reply submissions and authorities put in by counsel for the Respondents had not come to my attention properly, and had not been considered by me in the course of reaching my decision. I invited the parties to make written submissions to me on any steps that should be taken.
Cited by 19 cases · Cites 10 cases
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HCAL 16/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 16 OF 2007 ____________
____________ AND HCAL 17/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 17 OF 2007 ____________
____________ AND HCAL 18/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 18 OF 2007 ____________
____________ AND HCAL 19/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 19 OF 2007 ___________
____________ AND HCMP 1175/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 1175 OF 2007 ____________
Before: Hon Saunders J in Court Date of Hearing: 14 December 2010 Date of Completion of written submissions: 1 February 2011 Date of Decision: 9 March 2011 _____________ D E C I S I O N _____________ 1.On 9 December 2010, I handed down a decision in this matter on the question of costs. Subsequently, I learned, for the reasons outlined by me to the parties in Chambers on 14 December 2010, that reply submissions and authorities put in by counsel for the Respondents had not come to my attention properly, and had not been considered by me in the course of reaching my decision. I invited the parties to make written submissions to me on any steps that should be taken. 2.The parties are agreed, correctly, that until such time as the order as to costs is perfected the court has power to reopen and vary the decision: see HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637. This is not an appropriate case for the slip rule, under which the court does not change its order but merely ensures that the order accurately reflects what the court had originally intended when making the order: see Chow Tai Fook Jewellery Co Ltd, HCMP 6992/1998, unreported, 12 October 2000. It is common ground between the parties that, although the court has power to reopen in this case, strong reasons, synonymous with an exceptional case, must be shown before the decision is reopened: see Taylor v Lawrence [2003] QB 528, CA. 3.The argument for the Plaintiffs is that two points of law were advanced by the Respondents in the reply submissions; first that the Elgindata[1] principles had been followed by the Hong Kong courts post CJR, and second, that the present case, which concerned search warrants, did not meet the criteria set out by Lam J in Chu Hoi Dick v Secretary to Home Affairs (No 2) [2007] HKC 428. That is a correct reflection of the submissions. The Plaintiffs then say that none of the points made in the reply submissions would have affected the decision, which is accordingly not plainly wrong. 4.I accept that submission. 5.I have reviewed the authorities submitted by the Respondents and am satisfied that nothing contained in the submissions or the authorities would have affected my statement of the legal principles to be applied, and set out in paragraphs 5-7 of the decision. In his original submissions, Mr. Grossman for the Respondents, relied upon Elgindata principles and argued that they had been applied in Hong Kong. I found however that following CJR in Hong Kong those principles must be viewed in a different light. 6.As to the relevance of Elgindata principles, I have considered the authorities contained in the reply, and note the following comments which were made by the Plaintiffs, which I accept:
7.The second point raised in the reply is the issue of costs in judicial review cases involving public interest. At paragraph 28 of the decision I reviewed the nature of these proceedings, and in particular at paragraph 28(i)-(iii) considered factors relevant to the public interest issue. The authorities referred to in the submissions, with the exception of Philip KH Wong, Kennedy YH Wong & Co v Commissioner of ICAC (No 2) [2009] 5 HKLRD 379, were all decided before the introduction of the new factors in Order 62 rule 5(1) under CJR. The decision in Philip KH Wong did not raise the issue of a public interest challenge. 8.Consequently, I have reached the conclusion that even if I had taken into account the Respondents reply submissions and the authorities cited in support of those submissions, it would have no impact on the decision that I ultimately reached. 9.For these reasons, I am satisfied that this is not an appropriate case in which I should recall and vary the decision made on 9 December 2010. 10.There will be no order for costs in respect of the hearing on 14 December 2010, or in respect of the written submissions made subsequent to that hearing.
Mr G J X McCoy, SC leading Mr Steven Kwan, instructed by Messrs Haldanes, for the Applicants, in HCAL 16 – 19/2007 and the Plaintiffs, in HCMP 1175/2007 Mr Wayne Walsh, Deputy Law Officer (Mutual Legal Asst) of the Department of Justice, for the 1st – 3rd Respondents, in HCAL 16 – 19/2007 and the Defendant, in HCMP 1175/2007 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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