Brian Alfred Hall v. Secretary for Justice

HCMP 1201/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1201 OF 2008

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DECISION ON COSTS

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Background

1.On 26 April 2013, I granted leave to the Applicant under section 27A of the High Court Ordinance (“Ordinance”) to institute judicial review proceedings.  Under section 27A (1) of the Ordinance, leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court, and there are reasonable grounds for the proceedings.

2.The Applicant had sought to commence both judicial review and habeas corpus proceedings.  After a day’s hearing on 1 March 2013, and after further submissions were made in relation to the effect of the judgment of the Court of Appeal in CACC 18/2012 and CAAR 1/2012 on the proposed habeas corpus proceedings, I only granted leave to the Applicant to commence judicial review proceedings in relation to 4 disciplinary decisions made between 27 July 2012 and 14 September 2012. 

Costs application

3.The Applicant argued that he has succeeded both in the application for leave under section 27A, and in the application for leave to apply for judicial review.  It was argued that, on that basis, costs should follow the event and should be in the cause of the judicial review proceedings.

4.I agree with Mr Pao, counsel for the Putative Respondent, that it would not be wholly accurate to say that the Applicant is the successful party in the application for leave under section 27A.  Even leaving aside the habeas corpus proceedings, in respect of which the Applicant’s application for leave was dismissed, the Applicant has only managed to obtain leave in respect of 4 disciplinary decisions, when the original application under section 27A included more than 74 sets of proceedings, and the 4 sets of proceedings were in the separate list of the “further disciplinary proceedings”, in respect of which the Applicant claims he had not been provided with the relevant papers at the time of the filing of the original section 27A application in October 2012.  The 4 disciplinary decisions were the only decisions within the 3 months period in which judicial review proceedings should be brought.  In respect of these disciplinary decisions, I only granted leave to the Applicant to seek judicial review on the ground of alleged breach of Articles 10 and/or 11 of the Hong Kong Bill of Rights, in that the Applicant was deprived of legal representation in the disciplinary proceedings.  The Applicant had sought leave to institute judicial review and habeas corpus proceedings in respect of over 74 sets of disciplinary proceedings, on grounds that the adjudicators in the disciplinary proceedings had failed to apply the correct standard of proof, that they were biased and that the proceedings were carried on concurrently with criminal proceedings.

5.A substantial amount of time was devoted to the evidence filed in relation to the entire set of the over 74 disciplinary proceedings comprising the application for leave.  All of them were either seriously out of time (the decisions were made between 1999 and 2012), or the matter had already been adjudicated upon, or there was no basis for judicial review.  As Mr Pao rightly pointed out, if the Applicant had confined his section 27A application to the 4 disciplinary decisions which were not out of time, much time and costs would have been saved.

Applicable legal principles

6.It was argued on behalf of the Applicant that he should not have to bear the costs of the Putative Respondent’s appearance at and opposition to his application for leave to institute the judicial review and habeas corpus proceedings.  It is, indeed, clearly established that the court’s discretion on costs is a broad one, and the starting point is that costs in an unsuccessful leave application for judicial review should only be awarded in favor of the putative respondent in exceptional cases (Sky Wide Development Limited v Building Authority [2011] 5 HKLRD 202, and Re Ho Mei Ling [2012] 1 HKC 400).  What amounts to exceptional circumstances depends on the facts and issues raised in each case.

Involvement of Putative Respondent

7.In this case, as early as June 2009, the Applicant had written to the court for directions on the section 27A application, and on 23 June 2009, he was directed to serve the application on the Putative Respondent for their submissions in writing within 28 days.

8.When the section 27A application was reactivated in 2012, the Applicant served the papers in support of the application on the Putative Respondent, and I directed that the section 27A application be dealt with together with the application for leave to apply for judicial review, and that a date be fixed by the parties for the hearing.

9.The application for leave to apply for judicial review included an application for extension of time under Order 53 rule 4 (1) RHC.  The application for extension of time would in the usual course of judicial review proceedings have necessitated an inter partes hearing and arguments on the merits of the application for leave to commence the judicial review proceedings (Ho Mei Ling (No 2) HCAL 51 of 2011, 28 December 2011).

10.As the application for leave to commence the judicial review and habeas corpus proceedings under section 27A covered over 74 sets of proceedings, dating back to 1999, I considered that it would not only be in the interests of saving costs and time, but also fair and just, for the Putative Respondent to be given the opportunity to address the court on the application for leave to commence the judicial review proceedings out of time in respect of the large number of the decisions involved.

Relevant circumstances

11.As it turned out, the Putative Respondent was able to provide the court and the Applicant with details of the relevant disciplinary proceedings, including those in respect of which the Applicant claims he had not been provided with the relevant papers at the time of the application but which were included in the application for leave.  Consequently, the Applicant had the advantage of having the evidence made available to the court, and to present arguments for obtaining leave to institute judicial review proceedings in respect of the 4 decisions. 

12.There was serious delay in the intended judicial review proceedings, and no good reason has been shown for extending time at all.

13.As I have set out with more details in my Decision of 26 April 2013, the Applicant has no arguable case for judicial review on the grounds of the standard of proof and lack of structural independence in the adjudication process.  There is also abuse of process in re-litigating the ground of alleged bias.

Order

14.On the facts of this case, I found that the Applicant had no reasonably arguable case for judicial review save for 4 out of over 74 decisions, no grounds for habeas corpus, and that there was abuse.  The section 27A application was refused in the majority of cases and having regard to all the circumstances set out in the preceding paragraphs, I consider that there are indeed exceptional circumstances to order the Applicant to pay 80% of the Putative Respondent’s costs of the section 27A application, with the remainder 20% being costs in the cause of the judicial review proceedings.  The costs of and occasioned by the filing of the Applicant’s affirmation under HCAL 161/2012 are to be included in the costs of the section 27A application by HCMP 1201/2008. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.