黃志堅 v. 調查委員會（2012年10月1日南丫島附近撞船事故）

HCAL 113/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 113 OF 2013

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REASONS FOR DECISION

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INTRODUCTION

1.On 1 April 2014, Au J refused to grant leave to the applicant to apply for judicial review in respect of the Report of the Commission of Inquiry into the Collision of Vessels near Lamma Island on 1 October 2012 published on 30 April 2013 (“the Report”).  The applicant appealed.  By a judgment dated 26 September 2014, the Court of Appeal allowed the applicant’s appeal partially and granted him leave to apply for judicial review in respect of §§229, 287, 291 and 294 of the Report by relying on the grounds set out in §§17 to 25 of the Form 86.

2.In its judgment, the Court of Appeal noted that the applicant intended to apply for a protective costs order (“PCO”).  The Court of Appeal also noted his concern about the proper respondent to the application for judicial review.  The Court of Appeal then directed the applicant to take out the necessary summonses to deal with those matters.

3.Pursuant to my further direction, the applicant took out the present summons on 18 October 2014, which was returnable on 28 October 2014.  At that hearing, I gave further directions regarding the future conduct of the application, including informing the Secretary for Justice of this application and directing the Secretary to lodge his submission if necessary (which the Secretary subsequently did).  I then adjourned the matter for disposal on paper.

THE APPLICABLE PRINCIPLES

4.In R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, the English leading authority on PCO, Lord Phillips MR enunciated the general principles governing PCO as follows :

“ [74] We would therefore restate the governing principles in these terms : (1) A PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that : (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. (2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. (3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”

5.In Hong Kong, the jurisdiction to make a PCO is confirmed recently by the Court of Appeal in 姚寶昌 對 統計處處長及另一人, CACV 87/2013, dated 14 October 2014, unreported when Cheung JA said :

“ 3.  原告人所說的訟費保護令其實是pre-emptive costs order「預先訟費令」。法庭一般慣例是命令敗訴一方支付勝訴一方訟費。但法庭在涉及公眾利益的訴訟是可以行使酌情權預先免卻與訟的一方若果敗訴需要支付對方訟費的後果。

4.  法庭需要案件符合以下條件才會免卻需要支付勝訴一方訟費的責任。有關的訴訟涉及公眾利益，例如澄清某些重要會影響整體社會利益的法律議題及該申請免卻訟費的一方是不會在該訴訟獲得私利，見：Hong Kong Civil Procedure 2014，第 53/14/49段及Chu Hoi Dick & Anor v Secretary for Home Affairs (No 2) [2007] 4 HKC 428及Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362。”

6.In Chu Hoi Dick, Lam J (as Lam VP then was) formulated three criteria for the purpose of determining if a piece of litigation is brought in pursuit of public interest at §29 (read together with §46) :

(a)  A litigant has properly brought proceedings to reach guidance from the court a point of general public importance so that the litigation is for the benefit of the community as a whole to the costs of the litigation to be borne by the public purse as costs incidental to administration ;

(b)  The judicial decision has contributed to the understanding of the law.  It has to be a significant contribution to a point of general public importance.

(c)  The litigant has no private gain in the outcome.

7.The strict application of the no-private interest requirement had recently given rise to some concerns in England.  In Morgan and Baker v Hinton Organics (Wesse) Ltd and CAJE [2010] 1 Costs LR 1, the English Court of Appeal, after noting the development in the case law, said at §40 that a more flexible approach should be adopted.  In short, having a private interest does not necessarily preclude the making of a PCO.  Its presence, depending on the circumstances, may weigh heavily in the balance exercise that the court has to undertake : The Queen on the Application for Public Interest Lawyers Ltd v Legal Services Commission and another [2011] EWHC 3259 (Admin) at §22.

THE PRESENT CASE

8.The applicant must satisfy the court that his intended judicial review is brought in pursuit of public interest in accordance with the legal requirements as explained above.

9.The applicant used to work in the Marine Department.  He was the officer who approved the drawings for the vessel Lamma IV which sank after the collision, the subject matter of the Report.  He gave evidence in the inquiry conducted by the Commissions.  He was named and criticized by the Commission specifically at §294 of the Report :

“ 294. By contrast, the conflict between the main Hull drawings and the description of the Access Opening on the Frame ½ bulkhead on the Sections and Bulkheads drawing ought to have been identified by Mr Wong Chi Kin at the time that he considered and approved the drawings. Had the conflict been identified, as it ought to have been readily by him or any of those other persons described earlier, then the obvious necessary steps ought to have been taken to revise the drawings to resolve the conflict unambiguously. Sadly, such a simple and obvious step was never taken by any of the parties involved. For his part, Mr Wong Chi Kin ought not to have approved the drawings without having required them to be revised.”

§§229, 287 and 291 are all related to §294.

10.The thrust of the applicant’s complaints as set out at §§17 to 25 of the Form 86 is that the finding made by the Commission against him personally was unfounded and he had not been given a chance to deal with it in the course of his evidence before the Commission.  Thus the issues that the applicant has sought to raise concern the way he was treated as a witness by the Commission in the course of the inquiry and the Report.  It is essentially a question of procedural fairness.

11.In my view, none of the issues raised by applicant involves any public general importance, or the public interest requires that those issues to be resolved.  As rightly submitted by the Secretary, the law on procedural unfairness is well settled. In issue is the application of those principles to the facts of this case, which of itself is unlikely to contribute to the corpus or understanding of those principles since the decision depends entirely on the way in which the inquiry was carried out in this case.

12.Further, the applicant plainly has a private interest in the outcome of the judicial review.  In fact, his private interest in the matter, namely, to have his name and integrity as a witness vindicated, is the most important if not the only reason why the applicant wishes to pursue this judicial review.  This factor weights against him heavily.

13.I also agree with the Secretary’s submission that there is the applicant has failed to demonstrate with that he lacks the necessary financial resources to fund the judicial review.  This too is a factor militating against granting a PCO in his favour.

CONCLUSION

14.For the above reasons, I dismiss the applicant’s application.

15.The applicant has previously indicated that if his application for a PCO fails, he may consider withdrawing his application for judicial review.  In light of his indication, I now give the following directions :

(1)  If the applicant wishes to withdraw his application for judicial review, he should file a summons seeking leave to do so within the next 7 days.  The court will dispose of it in open court without his attendance, unless otherwise directed.

(2)  If the applicant wishes to continue with his application for judicial review, he should take out a summons to seek the court’s direction for joinder of respondent and/or interested party within the next 7 days.  That summons should be served on the Secretary for Justice.

The applicant appeared in person

Mr Johnny Mok SC and Ms Eva Sit, instructed by Department of Justice, for the interested party