TSANG KIN SHING (BULL) v. LI CHUN CHAU AND OTHERS

HCAL 13/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 13 OF 2012

________________________

________________________

________________________

JUDGMENT

________________________

1.  In this matter, the Petitioner seeks leave to withdraw the election petition. Basically, what he said is that in view of legal advice he received after the Court of Final Appeal’s decision in Charles Mok[1], he decided that there is no merit in the matter, and he decided to withdraw.

2.  At today’s hearing there is no person appearing seeking to be substituted as the Petitioner.  I regard the withdrawal to be a proper one. I now therefore grant leave to withdraw.

(Submissions on costs)

3.  Having considered the submissions of counsel, I do not think this is an appropriate case for ordering indemnity basis of taxation for costs although I take a dim view as to the manner in which the petition has been prosecuted.  As pointed out by Ms Wong, the 1^st Respondent could also have taken steps to expedite the proceeding of the matter.

4.  Under Rule 10 of the District Council (Election Petition) Rules, parties are required to apply to court for directions.  Although the initial burden is on the Petitioner to take out a summons to apply for directions, if the Petitioner fails to do that, under Rule 10(2), the Respondent may apply by summons to seek directions.

5.  In the present case, according to what is in the record, at the initial stage, the 1^st Respondent took issue as to whether the election petition had been lodged within time.  But what the 1^st Respondent did was only to protest by letter without taking any further steps in that regard.  Actually, that has been shown to be a false point because for the explanations that I have already given at the 26 September hearing.

6.  Therefore, I do not think the Petitioner should be the only person to be blamed for the apparent lack of progress in the matter between the lodge of an election petition and September this year.

7.  I take into account the history of the matter and Mr Chow’s submission that because of the public interest element in the election petition there is a duty to prosecute the petition with due diligence on the part of the Petitioner.

8.  Mr Chow also made submissions as to the rather flimsy basis on which the petition was lodged.  Be that as it may, bearing in mind the strict time limit for the lodge of election petitions, I would not regard that as, taking all these factors together, indication of lack of bona fide on the part of the Petitioner.

9.  I do not think there is sufficient material to warrant a conclusion that the petition was, from the outset, an abuse of process.  In the circumstances, I do not think there is sufficient ground for the court to order costs on indemnity basis.

10.  I will therefore order the Petitioner to pay the costs of the 1^st and 2^nd Respondents on a party and party basis, to be taxed if not agreed.