Ubamaka Edward Wilson v. Director of Immigration and Another

FACV No. 15 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 2011 (CIVIL)

(ON APPEAL FROM CACV NO. 138 OF 2009)

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Between :

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ:

1.This is the judgment of the Court on costs.

2.When handing down judgment, the Court made an order nisi that there be no order as to costs “in the light of the fact that new issues arose at the Court’s instigation and in the light of the outcome”. Each of the parties has now lodged submissions seeking to persuade the Court that the order should instead be for costs in his favour, pointing to aspects of the appeal on which he claims to have been successful.

3.The appellant has no basis for claiming an order for costs in his favour.  He failed on his double jeopardy argument both under Article 11(6) of the Bill of Rights and as a basis for claiming protection against refoulement to face cruel, inhuman or degrading treatment under Article 3 of the Bill.  His attempt at arguing that the immigration reservation contained in section 11 of the Bill of Rights Ordinance is unconstitutional also failed.  His deportation order was upheld.

4.Conversely, the respondents may be said to have won to the extent of having successfully resisted the appeal and upholding the deportation order.  However, the Court rejected the position which they had taken throughout that section 11 had the effect of overriding even the constitutional protection against cruel, inhuman or degrading treatment notwithstanding the non-derogability of Article 3 laid down by section 5 and notwithstanding the well-established absolute status of such protection.  The appeal therefore provided the occasion for the Court, on its own initiative, to review and overturn the respondents’ position on a constitutionally important provision. This attenuates the respondents’ success and, while they should not be ordered to pay the other side’s costs, the outcome in our view, justifies the conclusion that there should be no order as to the costs of this appeal.  The order nisi is therefore now made absolute.  Costs orders made below are not affected.

Written Submissions by Mr Richard Gordon QC, Mr Hectar Pun and Mr Timothy Parker, instructed by Tso Au Yim & Yeung and assigned by the Legal Aid Department, for the Appellant

Written Submissions by Mr Benjamin Yu SC, Mr Anderson Chow SC and Ms Grace Chow, instructed by the Department of Justice, for the Respondents