Ho Chun Yan Albert v. Leung Chun Ying and Another

HCAL 85/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 85 OF 2012

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BETWEEN

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JUDGMENT ON COSTS

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1.This is my judgment on costs as between the Petitioner and the 1^st Respondent. By a letter dated 6 December 2012, solicitors for the Petitioner invited this court to defer decision on costs pending the resolution of the issues for which the Court of Final Appeal granted leave to appeal on 13 November. After such request was brought to the attention of the 1^st Respondent[1], solicitor for the 1^st Respondent objected to such deferral by a letter of 19 December 2012. Having considered the arguments raised in the correspondence, I do not think there is any good ground for deferring my decision. Having regard to the issues for which leave was granted, I do not see how the outcome of the appeals in the Court of Final Appeal could assist the Petitioner in respect of the questions which I have to decide in this judgment.

2.In the present circumstances, I am of the view that the costs implications in respect of the election petition [“the Petition”] (including the costs of the motion of the 1^st Respondent dated 11 July 2012 [“the Motion”]) and the leave application under his summons dated 26 September 2012 should be considered separately.

Costs of the petition (including the Motion)

3.The overall outcome in respect of the Petition and the Motion was that the 1^st Respondent was successful in achieving the dismissal of the Petition.  I consider him to be the successful party for the purpose of determining the liability as to costs.  This is so notwithstanding that he failed to achieve a strike out of the Petition based on some of the grounds raised and discussed in my judgment of 12 September 2012.

4.I do not agree with the submission of Mr Lee SC that the costs of the Motion should be considered separately with regard to the judgment in September and the judgment in October.  Though there were two judgments, they all stem from the arguments raised in the context of the Motion. 

5.I have been referred to several authorities. It is not necessary to discuss them at length in this judgment.  It is common ground that the relevant principles can be found in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at p.1214.  The starting point is costs should follow the event and a party seeking a departure from that bears the burden of showing that a departure is justified, see Mariner International Hotels v Atlas Ltd (No 2) [2007] 4 HKLRD 194 at para 18; Regent National Enterprises v Goldlion Properties FACV 10 of 2008, 14 Sept 2009 para 8.

6.Further, as held by Yuen JA in Nina Kung v Wang Din Shin CACV 460 of 2002, 19 April 2005, the court can only order a successful party to pay the costs of the unsuccessful party if the former raised issues or made allegations improperly or unnecessarily.  See also my judgment on costs in Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 16 April 2012.

7.Though I did not agree with the 1^st Respondent on some of the points raised in respect of the constitutionality of the 7-day time limit, I do not think those issues were raised improperly or unnecessarily. After all, as submitted by Mr Mok SC, the question of time limit fell to be considered only because the Petitioner lodged the election petition after the 7-day period prescribed by the CEEO.

8.I also take the same view with regard to the arguments of the 1^st Respondent on striking out which I rejected in my September judgment.  As explained in my October judgment and the judgment of the Court of Final Appeal on 13 November 2012, there are inherent difficulties in the substantive merits of Petitioner’s case.  I do not think the strike out application was made improperly or unnecessarily.

9.Therefore, the court should not order costs against the 1^st Respondent on account of my determination against him in respect of some of the issues.

10.Should the court deprive him of his costs incurred on such issues?  It is not disputed that the court has the discretion to do so if the arguments on those issues had caused a significant increase in the length or costs of the proceedings.  But it is a matter of discretion and as mentioned above, the Petitioner has to show that such a course is justified. For the purpose of the exercise of this discretion, the issues in question have to be discrete and isolated, see Seepersad v Persad [2004] UKPC 19 para 24; Active Base Ltd v Roderick John Sutton HCCW 470 of 2005, 17 Oct 2008 para 10. 

11.At para 7 of his skeleton submissions on costs, Mr Lee identified 8 issues, of which counsel said the Petitioner were successful on 4 of them and partly on two others.  The 4 issues which Mr Lee claimed to be the winner were,

(a)  The refusal of leave to amend the Motion to add some new grounds for striking out;

(b)  The court’s jurisdiction to entertain the election petition after the assumption of office by the 1^st Respondent;

(c)  The constitutionality of the 7-day time limit; and

(d)  The prosecution of the election petition was not an abuse of process.

12.All the arguments on these issues were made at the hearing on 27 August 2012 and I do not think they have caused a significant increase in the length or costs of the proceedings.  The argument on the constitutionality of the 7-day time limit was actually part and parcel of the broader question of whether the Petitioner could lodge the election petition out of time.  I do not think it can be regarded as a discrete issue for present purposes.

13.Of the two issues which Mr Lee claimed to be partly successful, the grant of leave to amend the Petition to raise a plea of innuendo was actually the grant of indulgence to the Petitioner.  The other issue is in respect of the striking out.  Neither of them caused any significant increase in the length of hearing. In terms of costs, the grounds relied upon for striking out were canvassed again at the hearing on 25 September 2012 and the court held against the Petitioner on the merits, though not by way of striking out.

14.Thus, on proper analysis, I do not see any justification for the exercise of the discretion to deprive the 1^st Respondent of some of his costs.

15.I must also point out that though this case was also listed for hearing on 15 and 16 August 2012, as far as the disposal of the Motion is concerned, the court only gave directions at the early part of the hearing on 15 August.  The rest of those two days was spent on issues relating to the applications for judicial review in HCALs 83 and 84.

16.I therefore order the Petitioner to pay the costs of election petition (including the Motion) of the 1^st Respondent, such costs to be taxed if not agreed, with certificate for two counsel.

Costs of the leave application

17.This is in respect of the application for leave to appeal which was taken out by the 1^st Respondent out of abundance of caution.  That application was withdrawn after this court handed down the judgment in October.

18.Notwithstanding the withdrawal, Mr Lee submitted that leading counsel had been briefed and skeleton submissions had been prepared before the Petitioner was notified about the intention to withdraw.

19.Mr Mok invited this court to make no order as to costs because the need for the appeal had became academic due to the handing down of the October judgment and the overall outcome of the petition which was out of the control of the 1^st Respondent.

20.However, this court had already indicated at the hearing of 25 September 2012 that it would give a direction pursuant to Order 59 Rule 21(3).  In the October judgment, a ruling was given accordingly.  I do not understand why, having invited the court to give such a ruling, the 1^st Respondent did not wait until the ruling was given before taking out the leave application (which the ruling might render otiose).  Though there is a 14-day time limit for application for leave to be made, the October judgment was handed down within 14 days from 25 September.

21.I will order the 1^st Respondent to pay the costs of the leave summons up to 5 October 2012.  Bearing in mind arguments on the nature of the intended appeal had already been canvassed on 25 September 2012, I do not think the matter warrants certificate for two counsels.  I will therefore order costs to be taxed, but without any certificate.

Mr Martine Lee, SC and Mr Jeffrey Tam, instructed by Lam & Lai, for the Petitioner

Mr Johnny Mok, SC and Mr Abraham Chan, instructed by Sit Fung Kwong & Shum, for the 1^st Respondent