Leung Kwok Hung v. The President of the Legislative Council of the Hong Kong Special Administrative Region

CACV 123/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2012

(ON APPEAL FROM HCAL 64/2012)

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BETWEEN

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JUDGMENT (ON COSTS)

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Hon Cheung CJHC:

1.By our judgment dated 1 February 2013, we dismissed the applicant’s appeal from the refusal of Lam J (as Lam JA then was) to grant leave to apply for judicial review and the judge’s consequential order of costs against the applicant.  We also gave, on a nisi basis, the costs of the appeal to the putative respondent as well as the Secretary for Justice, to be taxed if not agreed, together with a certificate for two counsel.

2.The applicant now applies to vary the costs order nisi.  He asks that there be no order as to costs.  In any event, he says that he should only be ordered to pay one set of costs (in favour of the putative respondent).

3.The facts and issues, as well as the court’s reasons for its decision, have been fully set out in its judgment, and it is unnecessary to repeat the same here.

4.The applicant accepts that, where, as here, an appeal against the refusal of leave to apply for judicial review has failed, the starting point is for the unsuccessful applicant/appellant to pay the costs of the appeal.  However, the applicant argues, where the intended application for judicial review is a “public interest challenge” which was not “hopeless” (as opposed to having no “reasonable prospect of success”) as at the time of the lodging of the appeal, there should be no order as to costs.

5.As regards the second set of costs (in favour of the Secretary for Justice), the applicant essentially argues that the key to the award of a second set of costs is “a separate interest with separate arguments that have to be promoted”.

6.Despite the submissions made, I am reluctant to lay down any hard and fast rules on costs in this type of situation.  The facts in each case can vary greatly and the court’s discretion is wide.  I prefer to restrict myself to the facts of the present case.

7.I also refuse to be drawn into the very fine arguments over the hair‑splitting distinction between a hopeless appeal and one which did not enjoy a reasonable prospect of success – whether judged at the beginning or at the end.  I prefer to focus on the facts.

8.As was pointed out in paragraph 87 of our judgment, the applicant had already had the benefit of the two very detailed judgments of the judge, one dealing with the substantive application and the other on costs, when he lodged the present appeal.  Moreover, there were well‑established authorities, both local and overseas, on parliamentary privilege.  The applicant was of course entitled to exercise his right of appeal and took the matter to this court, even in the light of those judgments and authorities. But I see nothing wrong with awarding costs against him following the dismissal of his appeal in those circumstances.  That is only fair and just.

9.The appeal, like the proceedings below, raised constitutional issues under the Basic Law and the common law.  But, that, by itself, is insufficient to tip the balance in favour of the applicant in the present argument on costs.  There is some superficial attraction in the suggestion that the public interest is served by the appellate court giving definitive decisions on constitutional issues or issues of some general or public importance, and thus regardless of the outcome, the party raising those issues should be more favourably treated, in an appropriate case, in terms of costs. I can fully follow the apparent logic underlying that suggestion.  But all this premises on the issues so raised being really ones that reasonably required the appellate court’s answering in the first place.  This brings me back to the merits of the appeal and my earlier point that at the time the appeal was lodged, the applicant had already had the benefit of two very detailed and well-reasoned judgments from the judge dealing with those issues (which we eventually upheld).

10.The above analysis only leaves one matter: By the time of the appeal, the amendments had already been passed.  The intended challenge had therefore become a post‑enactment challenge at the appellate stage.  Some arguments that had been relevant to the court below had become irrelevant to this court by the time of the appeal, as pointed out in paragraph 28 of the judgment.  Nonetheless, for reasons explained in the judgment, the post-enactment challenge raised, on the facts of the present case, virtually the same considerations based on parliamentary privilege and the proper interpretation of the Basic Law.  Indeed the applicant’s arguments at the post-enactment stage were no better than those at the pre‑enactment stage before the judge.  They were not reasonably arguable.

11.In those circumstances, it is perfectly fair and right that he should bear the costs of the appeal.

12.As regards the second set of costs in favour of the Secretary for Justice, it should be noted that Lord Lloyd in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176, 1178H pointed out, on the facts of that case, that the developer (as an interested party) would not normally be entitled to his costs unless he could show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State (the respondent) – which is the applicant’s argument in the present case; “or unless he has an interest which requires separate representation” (my emphasis).

13.In my view, the Secretary for Justice, at this appellate stage, clearly had an interest on the arguments and outcome of the appeal which required separate representation.  As mentioned, at the appellate stage, one was concerned with a post‑enactment challenge.  The legal validity of the amendments was challenged and the Secretary for Justice was here to defend the same.  Contrast that with the position of the putative respondent who participated in the appeal to defend his constitutional role and powers as President of the Legislative Council in general and his decision to close the debate in question in particular.  The Secretary for Justice was, on the other hand, before the court to defend the validity of the amendments, the arguments in relation to which would impact on all other legislations passed by the Legislative Council in disputed situations relating to its internal procedures.  That was an interest and focus not entirely the same as that of the President, the putative respondent.

14.I therefore see nothing wrong with awarding, against the applicant, the costs of the appeal (as opposed to the costs below) to the Secretary for Justice by way of a second set of costs.

15.For these reasons, I would dismiss the application to vary the costs order nisi, and order that the same be made absolute, with a direction, for the avoidance of doubt, that the costs of this application shall be regarded as forming part of the costs of the appeal, to be dealt with accordingly.

Hon Kwan JA:

16.I agree with the judgment on costs of the Chief Judge.

Hon Poon J:

17.I agree with the judgment on costs of the Chief Judge and have nothing to add.

Hon Cheung CJHC:

18.Accordingly, the court makes the orders and direction dealing with costs as set out in paragraph 15 above.

Mr Martin Lee SC, Mr Hectar Pun and Mr Carter Chim, instructed by Lam and Lai, for the applicant

Mr Jat Sew Tong SC and Mr Anthony Chan, instructed by Lo & Lo, for the putative respondent

Mr Jin Pao, instructed by the Department of Justice, for the Secretary for Justice