LOH MING YIN v. HONG KONG EXAMINATIONS AND ASSESSMENT AUTHORITY

HCAL 1087/2020

[2020] HKCFI 2115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1087 OF 2020

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COSTS VARIATION
RULING

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A.      Introduction

1.  In this Ruling, I adopt the definitions and abbreviations used in my Judgment handed down on 3 July 2020, [2020] HKCFI 1135 (“Judgment”).

2.  By the Judgment, I dismissed the Applicant’s application for judicial review.  As to costs, I made a costs order nisi that the HKEAA’s costs be paid by the Applicant, and that there be no order as to costs between the Applicant and the EDB.

3.  By summons dated 14 July 2020, the Applicant seeks to vary the costs order nisi.  The variation sought is that there should be no order as to costs between the Applicant and the HKEAA, on public interest grounds.  The HKEAA seeks to uphold the costs order nisi, but asks for a certificate for two Counsel for the hearing on 2 and 3 July 2020.

4.  As previously directed, I am dealing with the variation application by way of paper disposal.  For that purpose, I have the benefit of the Applicant’s submissions dated 22 July 2020, the HKEAA’s submissions dated 4 August 2020, and the Applicant’s reply submissions dated 11 August 2020.

B.      Applicable Principles

5.  It is not in dispute that Hong Kong courts have developed specific legal principles in respect of the award of costs in public law cases, relating to what is termed ‘public interest litigation’.  Depending on the particular circumstances of the case, those principles may justify departure from the usual approach to costs following the event.  But the starting point remains the usual order of costs following the event.

6.  In Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428, at §29, Lam J (as Lam VP then was) identified the three criteria of ‘public interest litigation’ as being:

(1)  the litigant has properly brought proceedings to seek guidance from the court on a point of general public importance, so that the litigation is for the benefit of the community as a whole, to warrant the costs of the litigation being borne by the public purse as costs incidental to good public administration;

(2)  the judicial decision has contributed to the proper understanding of the law in question; and

(3)  the litigant has no private gain in the outcome.

7.  On behalf of the Applicant, Ms Po refers to Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 84, in which the Court of Final Appeal applied the same formulation to the exercise of discretion in relation to costs for unsuccessful leave applications in contested judicial review proceedings.  However, the specific paragraphs to which she refers, §§17(8)-(12), deal with the position on intermediate appeal and specifically identify that the position is different from that at first instance.  Further, it was a case limited to an application for leave to apply for judicial review, and did not involve a ‘rolled-up’ hearing of the sort conducted in the present proceedings.  Nevertheless, the general principles taken from the Chu Hoi Dick case were approved.

8.  More helpful are the first instance decision of Au J (as Au JA then was) and the Court of Final Appeal decision in Designing Hong Kong Ltd v Town Planning Board [2015] 3 HKC 525 at §§18-48 and (2018) 21 HKCFAR 237 at §§14-18.  The case specifically involved an application for a pre-emptive costs order, being an order in the nature of one which is made before the conclusion of the proceedings and which directs as to the costs order that will be made against the applicant no matter what the outcome of the case.  Because of the overlapping principles, it was necessary to consider the Chu Hoi Dick approach to the circumstances in which a court might depart from the usual starting position of costs following the event.

9.  At first instance, Au J held that the criterion of contribution to the proper understanding of the law is clearly not limited to issues where the legal principles have not been settled and thus need further development or clarification.  The proper understanding of the law also does not only include questions concerning the development of the common law principle of statutory construction.  The criterion should cover a question of how the relevant law is applied to a particular set of facts.  Similarly, it was held that the second requirement that the judicial decision required to be made in the litigation should contribute to the proper understanding of the law in question is not limited to only resolution of issues that involve difficult or unsettled legal principles.  Nor is there any absolute standard by which to define what amounts to an issue of general public importance.  The question is ultimately a matter of degree to which the requirement may be satisfied, where that is an objective exercise and where the court would pay regard to the qualitative significance of the issues at stake.

10.  But it was nevertheless emphasized that, other than the overarching twin criteria of public interest litigation, the other factors (including the merits, the existence or otherwise of a private interest, the relative financial resources of the applicant and respondent, the reasonableness of the applicant in approach, etc) are all matters that the court could take into account in its exercise of discretion to decide whether it is just and fair to depart from the usual position that costs follow the event.

11.  In the Court of Final Appeal, the Chu Hoi Dick three criteria were approved, but it was again identified that the merits of the application were to be taken into account.  As it was put, however important the point in issue may be in a public interest litigation case, a lack of merits will not often (if ever) save a party from an adverse order for costs.  That is why there must be a considered evaluation of merits and resolution of the conduct of the parties, as well as whether the litigation really concerned a matter of sufficient public importance (or not).

12.  An example of where the public interest litigation considerations were applied in a case of a ‘rolled-up’ hearing is in the decision of Chow J in Leung Chung Hang Sixtus v President of Legislative Council [2019] 1 HKLRD 292 at §87.  One factor taken into account by Chow J was that he had granted leave to apply for judicial review on the basis that the applications were reasonably arguable.

13.  But, it must be remembered that when granting leave, the court looks at the merits at a preliminary stage, whereas the examination of the incidence of costs at a final stage takes place after all evidence and arguments have been fully developed, considered and determined. In a situation not involving a ‘rolled-up’ hearing, the fact that leave has been granted to bring judicial review proceedings would ordinarily be insufficient to prevent the usual order of costs being made.

C.      Analysis

14.  The Applicant submits that the public interest litigation factor applies to this case, so as to justify a departure from the usual costs order.

15.  First, Ms Po submits that the proceedings involve the point of general and public importance, where there was a review of the first time since its inception in 1977 that the HKEAA decided to invalidate a conventional data-based question in a public examination in Hong Kong.  So, says Ms Po, the Judgment clarifies how the law should be applied to this previously unprecedented situation.

16.  In response, Mr Dawes says that the invalidation of a conventional data-based question (albeit unprecedented) did not involve the consideration of any point of general public importance for the benefit of the community as a whole where guidance from the court could properly be given or in respect of which the court was a proper forum for debate.  He suggests that the issues concerned only those candidates who took the History examination paper in 2020, not the “community as a whole”.  But that seems to me to be too narrow a consideration of what is meant by the phrase “community as a whole”.  Though the immediate impact of questions relating to examination questions is felt by the persons taking those examinations, there are far wider implications across society which are felt by far greater numbers of the community as a whole.  Also, the HKDSE is the form of examination sat by a large proportion of senior school examination candidates each year, used for entry to a wide range of further education establishments and employment.  The qualitative significance of the point is of reasonably wide importance.

17.  Mr Dawes also says that the various grounds of review put forward (all of which were ultimately rejected by the court) effectively asked the court to review the merits of the Decision.  But that was obviously a matter of academic judgment, where the court would not interfere. I accepted in the Judgment that the court will not interfere in matters of academic judgment, and I did not do so.  But, properly understood, the main thrust of the challenge brought by the Applicant in these proceedings was that the Decision was motivated by matters not related to academic judgment, but to external political pressures.  So, whilst the court may not be the proper forum for debating matters of academic judgment, the court is the proper forum for reviewing what was the true basis underpinning or behind the decision-making process under review.

18.  Therefore, and it being a matter of degree, I accept that it might be said that the Applicant brought these proceedings to seek guidance from the court on a point of general public importance, potentially benefiting the wider community.

19.  Secondly, Ms Po submits that the Judgment has contributed to the proper understanding of the scope of the review where academic judgment may be involved, where it was determined that academic judgment may have been exercised.  Ms Po asks me to take into account my finding that there was a degree of circularity in the HKEAA’s reasoning, and my expression of some doubt as to why a marking scheme could not properly have been identified.  She says those observations will go some way towards ensuring that the HKEAA will in future take care properly (a) to reason its decisions and (b) to articulate its reasoning.

20.  Ms Po also refers to the various observations made in the Judgment on the conduct of the EDB.  She says those observations serve as useful guidance to governmental behaviour, relevant not only in this case but in a wider context.

21.  In response to this point, Mr Dawes submits that the case did not involve seeking the court’s guidance on any legal issues, as all relevant legal principles pertaining to the proposed grounds of review are well-settled, and were not the subject of dispute between the parties.  I agree with that submission.  I do not think the Judgment contributed much which might be said to be novel to the understanding of the law in question, or its development.  Essentially, the case involved an application of that well-defined law to the particular facts.

22.  I also agree that the observations in the Judgment relating to the EDB’s behaviour are not relevant to the consideration of the incidence of costs between the Applicant and the HKEAA, not least where I have already ordered that there should be no order as to costs between the Applicant and the EDB (which order is not the subject of any challenge).

23.  Thirdly, whilst Ms Po acknowledges that the Applicant – as a candidate sitting the History examination paper – had an interest in the outcome of the proceedings, she says he was not motivated by self-interest.  The proceedings were brought on behalf of all candidates who sat the History examination, where the invalidation of the Question had considerable impact on candidates in terms of their grades, as well as from the anxiety suffered through the controversy surrounding the Question (which was not of their own making).

24.  Mr Dawes says that the Applicant’s contention that he was not motivated by self-interest cannot be supported. First, this is because the Applicant asserted that he was personally prejudiced by the Decision.  Secondly, as observed in the Judgment, different individual candidates might have fundamentally different views on whether the Question should be invalidated or not.  Thirdly, quashing the Decision would have risked causing prejudice to candidates by potential delay in release of results, with the consequent impact on university or employment applications.

25.  But I agree with Ms Po that the fact that there might be students who think differently about the invalidation of the Question does not lead necessarily to the conclusion that the Applicant was driven by self-interest.  Of course, the Applicant had a sufficient interest to make him a proper applicant.  He was also amongst the cohort of students, each of whom had an individual interest.  But I accept that the application was made for the intended benefit of the candidates as a whole, that is as a cohort. Indeed, it was my finding in the Judgment that the HKEAA’s considerations also related to the interests of the cohort as a group.

26.  Fourthly, Ms Po submits that the Applicant’s case was reasonably arguable and had a realistic prospect of success.  This, she says, is evident from the finding in the Judgment that the Court would likely have granted leave on some of the proposed grounds of review because of the impression left by the publicly available materials traversed in the Form 86.

27.  In response, Mr Dawes says that the Applicant did not meet the threshold of his case having a real prospect of success.  Therefore, the public litigation factor could not bite.  Though I commented in the Judgment that the impression left by the publicly available materials rehearsed in the Form 86 was one on which I would have granted leave on some of the proposed grounds of review, Mr Dawes says that cannot of itself be taken as an indication that the Applicant’s grounds had any real prospect of success at the final stage.  Rather, he says, taking into account all the evidence and arguments before the Court at the ‘rolled-up’ hearing, it is plain that none of the Applicant’s grounds of review had any real prospect of success.

28.  Mr Dawes refers to Practice Direction SL3 at §17, which reminds Counsel and solicitors to give further careful consideration to the merits of the application once they have received the respondent’s evidence, even though leave to apply for judicial review has been obtained.  So, he says, even though this was a ‘rolled-up’ hearing, that obligation ought to have been fulfilled, and the evidence filed by the HKEAA (and EDB) ought to have been seen as rendering the application devoid of merit.  He refers particularly to the evidence about the conduct of the two HKEAA Council Meetings, the minutes of which I have found in my Judgment give a thorough and detailed description of the decision-making process, and as to what was and what was not factored into reaching the Decision.

29.  Mr Dawes adds that the HKEAA was directed to participate in the proceedings and to file evidence and argument at short notice.  Having done so, and notwithstanding the Applicant’s attempts to introduce last-minute changes to his case, the HKEAA was the successful party on all grounds.

30.  In addition, Mr Dawes points out that it appears that the Applicant is not without financial means, having been able to pursue the proceedings with three Counsel without legal aid.  All in, Mr Dawes submits, there is no reason why the HKEAA should be deprived of its costs.

31.  As to the Applicant’s financial means, Ms Po replies that it may reasonably be inferred that as a secondary school student with no means of earning, the Applicant has limited financial means.  But, by contrast, the financial position of the HKEAA is much better than the Applicant, it’s financial statements as at 31 August 2019 showing net assets of over HK$207 million.

32.  But, Ms Po has not condescended to any particular detail as to the Applicant’s financial means, and it is unsatisfactory that I should be asked to infer the position when the Applicant would have been able to identify the actual facts.  Even though he is a secondary school student with no means of earning, the Applicant has not even explained how he funded his own costs.  Indeed, that the Applicant was not eligible for, or did not apply for, legal aid leads me to the inference that he has some source of funding.  Analogous to the situation when considering security for costs, I do not think I can properly assume the Applicant could not meet the costs if ordered to pay them.

33.  I also take into account that any public interest as might lead to a departure from the usual costs order has, in my view, already been reflected to some extent in the making of a no costs order as between the Applicant and the EDB.

D.      Result

34.  I accept that this application bore some of the features of public interest litigation.  But in the exercise of my discretion overall, bearing in mind all of the relevant factors required, and giving them such weight as seems to me to be appropriate, I do not think this is a case warranting a departure from the usual award of costs on the basis of it being public interest litigation.

35.  In the circumstances, I dismiss the application to vary the costs order nisi, which is instead made absolute.  There is no issue between the parties that there should also be a certificate for two Counsel to the HKEAA, and I so order.

36.  For the avoidance of doubt, I make no order in relation to the costs of this variation argument, for which the Applicant and the HKEAA will each bear their own costs.