The Secretary of the Medical Council of Hong Kong v. The Medical Council of Hong Kong and Another

HCAL116/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.116 OF 2013

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DECISION ON COSTS

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1.I handed down the judgment on 4 November 2013 dismissing the application for leave to judicial review the decision of the Medical Council by the Secretary of the Medical Council of Hong Kong.  The Putative Interested Party, Dr Fuong Rulin, who was represented by counsel during the hearing, applied for costs for one counsel.  I invited parties to make written submission on the issue of costs.

2.The general principle is that a court would only award costs against an unsuccessful applicant at the leave application stage if there are unusual or exceptional circumstances.  (per Lam J, as he then was, in Leung Kwok Hung v The President of the Legislative Council of the HKSAR, HCAL64/2012; per Tang VP, as he then was, in Sky Wide Development v Building Authority [2011] 5 HKLRD 202)

3.What amounts to exceptional circumstances depends on the facts and issues in each case.  The list of exceptional circumstances include the hopelessness of the application; whether the application was to advance principally the applicant’s own interest or public interest; whether the unsuccessful applicant has substantial resources to meet the costs; whether the putative parties attended the hearing only upon the invitation of the court and provided helpful assistance.  (See Leung Kwok Hung above; Re Ho Mei Ling (No. 2) [2012] 1 HKC 400; and Television Broadcasts Ltd v Communications Authority, HCAL3/2013 per Au J at § 6.)

4.In the present case, the Putative Interested Party argued that her counsel provided material assistance to this court. Further, the Putative Interested Party had a ‘separate interest’ in the hearing which justified representation by counsel.  The separate interest included the possible adverse effect on her reputation and practice.

5.The main issue in this case was whether the receipt in question had been issued to a patient.  The question turned on whether an inference could be drawn that it was.  Given the reasons set out in the judgment, I held that the Applicant could not satisfy the threshold for granting leave.  However, I do not think it is a hopeless case at the outset.

6.Initially, I had no intention to invite the Putative Interested Party to attend the leave application.  It was the latter who requested to be represented shortly before the hearing.  The submission by counsel for the Putative Interested Party raised no novel issue which was different from that needed to be resolved by the Putative Respondent.

7.The Putative Interested Party admitted that there was an error on her part to state that she was a specialist in paediatrics in the receipt.  However, she had no idea whether the receipt had been issued.  This was the same issue that the Putative Respondent sought to resolve.  I see no separate issue that the Putative Interested Party needed to address.  The argument that there was a ‘separate interest’ which justified separate representation failed.  (See Leung Kwok Hung v President of the Legislative Council (re: costs) [2013] 2 HKLRD 1179, per Cheung CJHC at §12—13; Re Ho Mei Ling (No. 2) per Lam J, as he then was, at §30—33.)

8.Having considered the written submissions from both parties, I refuse the application for costs by the Putative Interested Party.

9.I make no order as to costs.

Mr Anthony Ismail, instructed by the Department of Justice, for the Applicant

The Putative Respondent in person, absent

Mr McCoy, SC, leading Mr Daniel Hui, instructed by Howse Williams Bowers, for the Interested Party