T v. Commissioner of Police

FACV No. 3 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2014 (CIVIL)

(ON APPEAL FROM CACV NO. 244 OF 2012)

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BETWEEN

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JUDGMENT ON COSTS

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The Court:

1.By a majority, the Court dismissed this appeal.  In paragraph 315 of the Court’s Judgment dated 10 September 2014, we gave leave to the parties to file written submissions as to costs.

2.The parties have now filed their written submissions on costs. 

3.The respondent, T, seeks his costs before us.  He asks us not to interfere with the costs order made by the Court of Appeal (as to which see below). 

4.The appellant, the Commissioner of Police, invites us to reduce T’s costs by 40% before this Court and in the courts below.  The basis for such reduction is said to be: the wasted time for written and oral submissions on the constitutional issue, which the Commissioner contends was hopeless and should not have been raised; the rejection “even within the majority” of “the bulk of T’s arguments” on construction and the fact that T’s arguments shifted and his case reformulated and reconstituted; the Commissioner’s maintenance of a responsible and proper position throughout the litigation; and the “exceptional 3:2 split amongst the Court’s members on the construction issue” such that “an order simply awarding all costs to T would fail to fairly and justly reflect this strong division in views”.

5.We do not accept that the Commissioner’s arguments justify an across the board 40% reduction of T’s costs at all levels of the proceedings.

6.So far as the costs before this Court are concerned, we are satisfied that these should follow the event and so we would award T all his costs of the Commissioner’s appeal to this Court.  The Commissioner chose to appeal the Court of Appeal’s judgment to this Court and lost.  The fact there was a 3:2 split does not change that outcome and is not a sound basis for reducing T’s costs in this Court.

7.So far as the costs before the Court of Appeal are concerned, the order made by that court was as follows:

“57. As regards costs, there can be no denying that the applicant has won substantially on the key dispute between the parties regarding the scope of application of the relevant provisions in the Ordinance and whether the dance performance was caught by the Ordinance, despite the way the relief sought in the proceedings below and in this appeal has been framed. At the end of the day, this court has been able to grant substantive relief in favour of the applicant based on the merits of his case. I would therefore make a costs order nisi that the applicant shall have 80% of the costs of the proceedings here and below, together with a certificate for two counsel. I would also order legal aid taxation of the applicant’s own costs. I would direct that any application to vary the costs order nisi shall be dealt with by written submissions only.”

8.That order nisi was not subsequently varied.  None of the Commissioner’s arguments at this stage justify any variation to that order as to costs before the Court of Appeal and the Court of First Instance, which reduced T’s recovery of costs in those courts by 20%.

9.Therefore, the order we make as to costs is as follows:

The costs of and occasioned by the appeal to the Court of Final Appeal (including the costs of preparing the written submissions on costs) be paid by the Appellant to the Respondent, to be taxed if not agreed, with a certificate for two counsel; and the Respondent’s own costs to be taxed in accordance with the Legal Aid Regulations.

10.We make no order varying the costs order of the Court of Appeal dated 18 September 2013 as regards the costs before the Court of Appeal in CACV 244/2012 and the Court of First Instance in HCAL 102/2011.

Written submissions by Mr Johnny Mok SC and Mr Abraham Chan, instructed by the Department of Justice, for the Appellant

Written submissions by Mr Hectar Pun and Mr Newman Lam, instructed by Vidler & Co., assigned by the Director of Legal Aid, for the Respondent