Yeung Ka Sing, Carson v. Secretary for Justice

HCAL 59/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 59 OF 2013

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Before: Deputy High Court Judge Wright in Court

Date of Ruling: 3 May 2013

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RULING ON COSTS

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1.The applicant made an application for leave to institute judicial review proceedings in respect of a decision by the Secretary for Justice declining a request by the applicant to transfer certain criminal proceedings against him from the District Court to the High Court for trial.

2.The applicant requested an oral hearing if the relief sought was not to be granted on the papers, pursuant to the provisions of Order 53, Rule 3(3) of the Rules of High Court. The oral hearing was held on 26 March 2013. The Secretary was invited to attend that hearing. The application was dismissed. The Secretary applied for costs. I made an order nisi that the applicant pay the costs of the Secretary and gave directions as to the filing and service of written submissions. I have considered those submissions.

3.It is not in dispute that this court has the power to award costs in proceedings of this nature. Both parties have invited attention to the decision of the Court of Appeal in Sky Wide Development Ltd and The Building Authority [2011] 5 HKLRD 202 as authority for that proposition, the applicant particularly inviting attention to the observation of Tang VP that “ ... it takes unusual circumstances for and award of costs to be made against an applicant for leave and ... the Court should be sparing in the exercise of such discretion. “

4.The applicant suggests that there is nothing in the present matter which constitutes unusual circumstances so as to justify the exercise of my discretion in favour of the Secretary.

5.The application was resisted by the Secretary on the basis, primarily, that it constituted an abuse of the process of this court. For the reasons which appear in the judgement, which I do not intend to repeat, it was clear that that was at a correct characterisation of the application. I was also satisfied, for the reasons given, that the application was frivolous. I dismissed the application for that reason also indicating that, in any event, it failed to meet the “reasonably arguable” test.

6.In my judgement where, as in this instance, an applicant fails to make full disclosure of material matters in an application for leave and the application made is frivolous and an ill-disguised attempt to delay a forthcoming criminal trial it is entirely appropriate for the court to exercise its discretion in favour of the Secretary.

7.I direct that the applicant is to pay the costs of the Secretary occasioned by the application for leave, such costs to be taxed if not agreed.

Mr Kevin Zervos, SC, DPP, and Anthony Chau, SPP, of the Department of Justice, for the putative Respondent.

Mr Daniel Fung, SC, Mr Benson Tsoi, and Mr David Chen, instructed by Messrs Tung, Ng, Tse & Heung, for the Applicant