“Ra” v. Betty Kwan, Adjudicator

HCAL 115/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 115 OF 2013

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BETWEEN

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D E C I S I O N

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1.The applicant (“RA”) is a torture claimant under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Pursuant to the leave of this court granted on 16 December 2013, he made an application by way of an originating summons dated 31 December 2013 to apply for judicial review to challenge the decision of the Adjudicator made on 5 June 2012 (“Decision”) dismissing his Petition made under Article 48(13) of the Basic Law. RA was not granted leave to challenge the determination of the Director of Immigration (“Director”) made on 28 February 2012 rejecting his torture claim.

2.On 20 January 2014, the Adjudicator indicated her intention to adopt a neutral stance in these proceedings and her wish to be excused from attending the same.  On 23 January 2014, this court directed that the Director be joined in these proceedings as an interested party.  The joinder of the Director was necessary so that the court might be properly assisted in the just determination of these proceedings.

3.The hearing of these proceedings was to take place on 27 August 2014.  On 23 July 2014, the Director wrote to the applicant proposing a consensual disposal of these matters (“Proposal”).  Such proposal eventuated in the disposal of these proceedings by consent on 27 August 2014.  Pursuant to a consent order of that date, the Decision was quashed and RA’s torture claim remitted to the Torture Claims Appeal Board for determination by a different Board member. 

4.However, the parties were unable to agree on the issue of costs.  In the Proposal, the Director suggested that there should be no order as to the costs of these proceedings.  On the other hand, RA maintains that the Director should bear his costs.  This is the determination of the costs dispute. 

5.It must be pointed out that both parties before this court are publicly funded.  Regrettably, more public funds are being expanded to sort out which of the public bodies should shoulder the legal expenses incurred in these proceedings.  Whichever way this dispute is resolved, the taxpayers will be worse off.  It must be said that public bodies are duty bound to act reasonably to ensure that the resources under their care would not go to waste unnecessarily. 

6.With the benefit of 2 rounds of written submissions by the parties, the key issue here is whether the Director was, as senior counsel for RA, Mr Dykes, has put it, a contesting party in these proceedings.  It is common ground that costs is in the general discretion of the court. 

7.On behalf of the Director, Ms Cheung argues strongly that the Director was only joined in these proceedings pursuant to the direction of this court.  The evidence filed by the Director did not go beyond putting before the court the relevant material so as to assist the court in the proper adjudication of these proceedings.  The Director had maintained a neutral stance in these matters.

8.I am far from satisfied that the Director had done anything, including the filing of his evidence or its contents, to suggest that he had taken a position inimical to RA’s case. 

9.Relying on Chan Chi Shing v The Revising Officer Mr Symon Wong, HCAL 132/2010 (24 June 2011), §4(1), Mr Dykes argues that the Director was not a neutral party by reason of the fact that the evidence filed by him had caused additional costs to be incurred by RA.  I do not accept this submission.

10.Firstly, there is no general proposition of law to be found in para 4(1) of the decision in Chan Chi Shing.  That paragraph recited some of the arguments before the court.  The only point of principle which can be distilled from that decision on costs is that where an interested party was joined in an action at the direction of court he may be liable on the costs of the applicant if he has taken an active part in opposing the application.

11.Secondly, I do not believe that the neutrality of a party is determined by the filing of evidence on his part, which normally would result in additional costs to the applicant.  The court had made no such ruling in Chan Chi Shing. 

12.Thirdly, the neutrality of a party should be decided as a matter of substance.  For example, the evidence filed by that party may be designed to challenge the case of the applicant.  In this case, it is unsurprising that RA did not agree with some of the evidence filed by the Director because his torture claim was rejected by the Director.  However, it must be right for this court to be assisted by having all the relevant material placed before it.  This was the task fulfilled by the Director. 

13.Finally, I see no reason to order the costs of these proceedings against the Director because he had agreed to the consensual disposal of the same.  Plainly, such disposal of these matters was sensible and had resulted in the saving of costs and resources of the court.  It is ironic that in these circumstances the Director is asked to bear the costs of RA.

14.Had it been the case that RA obtained the relief sought after a full hearing with the Director maintaining a neutral stance throughout the proceedings, it is doubtful if a costs order would then be sought against him.  I see no reason why one is justified when the matters had been dealt with more economically.  The law does not discourage a party from acting sensibly to save the time and costs of litigation, which is indeed one of the underlying objectives of Civil Justice Reform : see Order 1A, rule 1 of the Rules of the High Court. 

15.In these premises, I make no order as to costs save that RA should bear the costs of the Director from 1 August 2014 (7 days after the Proposal was made), including the costs of this hearing, to reflect the unreasonableness in not agreeing to the proposed costs order.  RA’s own costs be taxed in accordance with legal aid regulations.

Mr Philip Dykes SC, instructed by Daly & Associates, for the applicant

Ms Jenny Cheung, Senior Government Counsel of the Department of Justice, for the interested party