RE LEUNG KWOK HUNG

HCAL 83/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 83 OF 2012

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JUDGMENT ON COSTS

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1.  After hearing from the parties, I refused leave to apply for judicial review. My reasons were set out in my judgment of 30 July 2012. The putative respondent [“the Respondent”] seeks costs and the applicants (whom I shall refer to as Mr Leung, as applicant in HCAL 83, and Mr Ho, as applicant in HCAL 84, respectively) oppose the making of any order for costs against them. Though Mr Lee suggested in his written submissions that the question of costs in HCALs 83 and 84 should be deferred pending the disposal of HCAL 85, I do not see any good reason for such deferral. As I see it, though the same substantive challenges are involved in the three sets of proceedings, the main focus of the hearing in July (putting aside the debate on the arguability of the allegations as to false statements which, as it will be apparent later, shall not feature much in my decision on costs) is whether the law allows such parallel challenge by way of judicial review and whether the court should, as a matter of discretion, permit such course to be taken in view of the prosecution of the election petition in HCAL 85 which, irrespective of how one construes the statute, is the primary avenue for questioning an election.

2.  It is necessary to set out some relevant history of the proceedings. The Chief Executive Election took place on 25 March 2012 and the Returning Officer declared the Respondent to be duly elected on the same day. The 7-working day time bar under Section 34 of the Chief Executive Election Ordinance [“CEEO”] expired on 3 April 2012. The 30-day time limit under Section 39 of the CEEO expired on 24 April 2012. 

3.  According to the allegations contained in the Form 86 filed in both set of proceedings, the first report of the existence of the UBWs on the Respondent’s properties was made by Ming Pao Daily on 21 June 2012.

4.  The Chief Executive assumed office on 1 July 2012.

5.  Proceedings were first issued by Mr Leung: his Form 86 was filed in HCAL 83 on 4 July 2012. In that Form 86, he sought the following relief,

“1. A declaration that the Declaration and the Government Notice are null and void and of no effect because Mr. CY Leung was not duly elected for the reason that he engaged in illegal conduct within the meaning of section 26 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 (“ECICO”) at the CE Election; and/or

2. An order of certiorari to bring up and quash the Declaration and the Government Notice because Mr. CY Leung was not duly elected for the reason that he engaged in illegal conduct within the meaning of section 26 of the ECICO at the CE Election; and

3. A declaration that Mr. CY Leung cannot lawfully assume the office of the Chief Executive of the HKSAR (“the CE”); and

4. Further or alternatively, a declaration that Mr. CY Leung cannot lawfully assume the office of the CE because he is not “a person of integrity” within the meaning of Article 47 of the Basic Law of the Hong Kong Special Administrative Region (“BL”) and should be disqualified from acting as the CE; and

5. An injunction under section 21J(l)(a) of the High Court Ordinance, Cap. 4 restraining Mr. CY Leung from acting in the office of the CE; and

6. A declaration under section 21J(l)(b) of the High Court Ordinance that the office of the CE to be vacant; and

7. An extension of time under section 39(2) of the CEEO and/or Order 53, rule 4(2) of the Rules of the High Court, Cap. 4A (“RHC”) to make this application; and

8. A hearing of this application under Order 53, rule 3(3) of the Rules of the High Court, Cap. 4A if leave is not granted on the papers; and

9. An expedited hearing if leave is granted; and

10. Such further or other remedy, relief or order as may be just and expedient in the circumstances; and

11. An order for costs.”

6.  Mr Ho filed his Form 86 in HCAL 84 on 5 July 2012. In that Form 86, he sought the following relief,

“1. A declaration that the Declaration and the Government Notice are null and void and of no effect because Mr. CY Leung was not duly elected for the reason that he engaged in illegal conduct within the meaning of section 26 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 (“ECICO”) at the CE Election; and/or

2. An order of certiorari to bring up and quash the Declaration and the Government Notice because Mr. CY Leung was not duly elected for the reason that he engaged in illegal conduct within the meaning of section 26 of the ECICO at the CE Election; and

3. A declaration that Mr. CY Leung therefore cannot lawfully assume the office of the CE; and

4. A declaration that in any event, Mr. CY Leung cannot lawfully assume the office of the CE because he is not “a person of integrity” within the meaning of Article 47 of the Basic Law of the Hong Kong Special Administrative Region and should be disqualified from acting as the CE; and

5. An injunction under section 21J(1)(a) of the High Court Ordinance, Cap. 4 restraining Mr. CY Leung from acting in the office of the CE; and

6. A declaration under section 21J(1)(b) of the High Court Ordinance that the office of the CE to be vacant; and

7. A declaration that section 34(1) of the CEEO insofar as it requires that an election petition must be lodged within 7 working days (without provision for extension of time) is inconsistent with Article 35 of the BL; and

8. A declaration that a power be read in to section 34(1) of the CEEO to enable the Court to grant an extension of time where there is good reason for extending the period within which the election petition shall be made; and

9. An extension of time under section 39(2) of the CEEO and/or Order 53, rule 4(2) of the Rules of the High Court, Cap. 4A (“RHC”) to make this application; and

10. A hearing of this application under Order 53, rule 3(3) of the Rules of the High Court, Cap. 4A if leave is not granted on the papers; and

11. An expedited hearing if leave is granted; and

12. Such further or other remedy, relief or order as may be just and expedient in the circumstances; and

13. An order for costs.”

7.  Though there are differences in the wordings, in both Form 86 there are claims for,

(a) Reliefs (declaratory as well as injunctive) seeking to oust the Respondent from the office of Chief Executive;

(b) Substantive challenges based on Article 47 of the Basic Law;

(c) Extension of time pursuant to Section 39(2) of the CEEO;

(d) A hearing of the leave application if leave is not granted on paper;

(e) Expedited hearing if leave is granted.

8.  Thus, both Mr Leung and Mr Ho recognized that extension of time was necessary in order for the application for judicial review to be brought and they applied for such extension pursuant to Section 39(2). 

9.  Further, in both Form 86, the challenges to the return of the Respondent as the elected Chief Executive are based on grounds that fell within the scope of Section 32 of the CEEO. Apart from those challenges, they contained allegations based on Article 47 of the Basic Law.

10.  On the same day (and actually at the same time[1]) when he lodged the Form 86 in HCAL 84, Mr Ho also lodged the election petition in HCAL 85. The grounds in the election petition are the same as those challenging the return in the Form 86 of HCAL 83 and 84.

11.  It should also be mentioned that Mr Ho was a partner of the solicitor firm acting for Mr Leung in HCAL 83. In the Form 86 of HCAL 83[2], there are detail references to the pre-action communications between Mr Ho (through his solicitors, Messrs. Lam & Lai) and the Respondent. Though different teams of counsel represented Mr Leung and Mr Ho, there are substantial similarities in the two Form 86. The irresistible inference is that there were communications between those acting for Mr Ho and those acting for Mr Leung with regard to the commencement of these proceedings and the election petition in HCAL 85. In such circumstances, it would not be far-fetch to infer that Mr Leung had been informed about Mr Ho’s election petition in HCAL 85 shortly after it was lodged (if not before).

12.  In any event, at the hearing on 12 July 2012, Mr Dykes SC (representing Mr Leung) did not suggest that Mr Leung had no knowledge about the election petition in HCAL 85 or that he was only informed about it shortly before the hearing.

13.  On 11 July 2012, the Respondent issued a notice of motion to strike out the election petition in HCAL 85. One of the grounds relied upon, as stated in the Notice of Motion, is that the petition is time-barred.

14.  The hearing on 12 July 2012 was listed as a hearing for all three sets of proceedings. In respect of HCAL 83 and 84, given that Mr Leung and Mr Ho sought extension of time, the Respondent was entitled to be heard. Though, as it transpired, this court did not find it necessary to give any separate ruling on the application for extension of time, Mr Mok’s submissions (on behalf of the Respondent) did address the same. The merit of the applications for leave to apply judicial review is, of course, a relevant consideration in the context of an application for extension of time.

15.  By the time of hearing, it was abundantly clear that there were substantial overlaps between the three sets of proceedings. In view of Section 32 of the CEEO and the principle that judicial review should not be permitted if alternative remedies were available, and in view of the pursuit of the election petition in HCAL 85, Mr Ho and Mr Leung and those advising them should have considered whether there was any justification for proceeding with HCAL 83 and HCAL 84.

16.  Since he was the applicant in HCAL 84 as well as the petitioner in HCAL 85, Mr Ho was aware of the need to justify such duplication of proceedings. His position was set out at para 158 of his Form 86 in HCAL 84,

“The Applicant lodges the substantive challenge by way of election petition and hence a challenge on the constitutionality of section 34(1) of the CEEO only if the Court does not allow the Applicant to proceed by way of judicial review.”

17.  He was thus well aware of the difficulty in relation to the 7‑day time bar under Section 34. However, instead of tackling that in the context of the election petition where very little was said about the election being lodged out of time[3], he put forward his challenge to the constitutionality of Section 34 at paras 159 to 184 of the Form 86 in HCAL 84.   

18.  There was no reason why the constitutional challenge could not have been made in the context of the election petition. As mentioned, the time-bar issue was raised by the Notice of Motion to strike out. This court therefore gave directions at the hearing on 12 July for that issue to be argued in HCAL 85. Much reliance was placed by Mr Lee on para 158 of Mr Ho’s Form 86 in his written submissions on costs and it was suggested that this court did not pay sufficient regard to that in the judgment of 30 July 2012. With respect, this submission failed to take account of the actual course of the proceedings on 12 July. The first thing that the court dealt with at that hearing was the giving of directions for the strike-out application in HCAL 85 of 2012. Though Mr Lee did put forward a suggestion of adjourning HCAL 85 at the very beginning, such suggestion was not revived after the court indicated that the strike-out application had to be heard as soon as practicable and the constitutionality of the 7-day time bar should be litigated in the context of HCAL 85. In view of the underlying policy of speedy determination, the adjournment of HCAL 85 pending the substantive determination of HCALs 83 and 84 cannot be justified. Thus, by the time when the parties argued on whether leave should be given for HCALs 83 and 84, the possibility of adjourning HCAL 85 was no longer an option.

19.  Though Mr Lee did not put Mr Ho’s position in these terms, it is quite apparent that the preference of Mr Ho in advancing the challenge by way of judicial review (as stated in the said para 158) was the less stringent time limit under Section 39 of the CEEO. But he has to face the ouster provision in Section 32 of the CEEO. The preference was also accountable by the inclusion of the additional challenge under Article 47 of the Basic Law in HCAL 84.

20.  Because of this preference, instead of standing down the application for leave in HCAL 84, Mr Lee tried to persuade this court that Section 32 does not have such ouster effect and launch into detail submissions in that regard as well as the viability of a challenge under Article 47. In these respects, the July hearing were in effect substantive hearing with full arguments being deployed on the legal viability of these challenges. Whilst it may not be a rolled-up hearing in that the factual disputes on the allegations as to false statements had not been gone into, it was analogous to a striking-out hearing or an inter partes hearing for setting aside ex parte leave.

21.  In respect of Mr Leung, though he did not have any locus to issue an election petition.  He was aware that an election petition had been issued by Mr Ho. He also faced the obstacle presented by Section 32 of the CEEO. Like Mr Ho, he also had the benefit of a full hearing on the legal viability of a challenge under Article 47.

22.  On these two issues, this court ruled against Mr Ho and Mr Leung for the reasons given in my judgment of 30 July 2012.

23.  This court also ruled against them on the purported justifications for having three sets of proceedings instead of one in respect of the challenge to the return of the 1^st Respondent as the Chief Executive.

24.  It is against these backgrounds that the application for costs is to be considered.

25.  The guiding principle governing the award of costs in Hong Kong in respect of leave application in which a putative respondent appears and successfully resists leave is well-settled: costs will be awarded only in unusual circumstances, see Sky Wide Development v Building Authority [2011] 5 HKLRD 202; Re Ho Mei Ling (No 2) [2012] 1 HKC 400; Leung Kwok Hung v The President of the Legislative Council HCAL 64 of 2012, 18 July 2012[4].

26.  As Tang VP observed in Sky Wide Development v Building Authority [2011] 5 HKLRD 202, the court’s discretion on costs is a broad one. Further reading para 28 of that judgment together with para 31, unusual circumstances are those where the court finds that there are good reasons to order costs as opposed to the usual cases where no costs would be awarded in favour of a putative respondent even though leave is refused.

27.  Mr Lee submitted that this is a special rule and its rationale is as follows,

“(1) A Hong Kong resident “shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel” (Article 35(2) of the Basic Law);

(2) It is, therefore, a restriction of his constitutional right if an applicant is required, by an ex parte application, to obtain the leave of the Court before he is allowed to bring judicial review proceedings against a putative respondent pursuant to Order 53 rule 3(2) of the Rules of the High Court, Cap. 4A (“the RHC”);

(3) This restriction must be justified by the government as being (inter alia) necessary and not disproportionate;

(4) Assuming, for the moment that the restriction is both necessary and not disproportionate and therefore not unconstitutional, the Applicant is only required to seek leave ex parte;

(5) The Applicant, as in all ex parte applications, has the undoubted duty to make full and frank disclosure of all material facts of which he is aware. Any breach of this duty leads to leave being set aside if the Court should later become aware of the non-disclosure of material facts during the ex parte application;

(6) The Court should, therefore be sufficiently informed of all relevant facts and law when an ex parte application for leave is lodged and put before the Court;

(7) Very often the Court is in a position to give leave on paper if satisfied that the application is reasonably arguable;

(8) Where the Court takes the view that the application is “hopeless”, it should dismiss it without any more ado, although it may decide to afford the applicant an opportunity to make oral submissions before it on an ex parte basis;

(9) Where the Court is inclined to the view that the application is not quite reasonably arguable but not hopeless, it is usual to allow an ex parte hearing, which should in most cases enable the Court to determine whether to give leave or dismiss the application for leave;

(10) It must therefore be rare for the Court to grant indulgence to a putative respondent to appear at an ex parte hearing for leave even if such a request is made. And it must be even more rare for the Court, on its own motion to invite a putative respondent to appear through counsel and submit evidence at the ex parte hearing;

(11) When the Court “invites” a putative respondent to appear at an ex parte hearing for leave, the “invitation” must be deemed to be couched in the following terms”:

‘The Court has reason to believe that you may wish to appear before it during the ex parte application for leave to apply for judicial review which clearly concerns you (or your bureau). The Court now cordially invites you to appear (giving the date and time). You may appear through Counsel or even Leading Counsel.

But the Court must advise you that even in the event of the Court agreeing with your Counsel that leave for judicial review should not be given, there is a strong probability that costs would not be awarded in your favour because the law only requires the applicant to seek the Court’s leave by an ex parte application.

You may therefore wish to seek the advice of your lawyers before deciding whether to accept the Court’s invitation, which after all is an invitation which you are quite free to decline.’

(12) Thus, if the Court dismisses the ex parte application for leave after a “contested” ex parte hearing, it is well-nigh impossible for a putative respondent to suggest that the ex parte application was “hopeless”;

(13) In some ex parte applications for leave in recent years where the subject matter of the judicial review sought was extremely politically sensitive, or where the mere granting of leave alone might already have serious implications for the community or might greatly affect the public purse, it is perfectly understandable (and it may well be right) for the Court to wish to play safe by inviting or permitting the putative respondents to appear through counsel and produce evidence to assist it in coming to, and be manifestly seen to be coming to, a correct decision in the ex parte application. But it must be accepted that the Court’s desire to be absolutely correct by playing safe in these circumstances cannot constitute an “exceptional circumstance” or be a valid reason to depart from the Special Rule;

(14)   Otherwise, the public perception might be that it would be extremely costly to seek, but not obtain, leave in judicial review cases, particularly when it is now usual for very experienced Senior Counsel to be briefed to oppose such ex parte leave applications. And this fear to meet a hefty costs order would undoubtedly deter public spirited individuals from seeking justice from the Courts, which “seriously impedes the right of citizens to have access to justice” – see the quote from R (Ewing) v Office of the Deputy Prime Minister [2006] 1 WLR 1260 at §41 at paragraph 13 below; and

(15)   If, therefore, it becomes the norm, rather than the exception to award costs to a putative respondent in ex parte leave applications, the hitherto restriction of a citizen’s constitutional “right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel” protected by Article 35(2) of the Basic Law may well fall foul of the constitutional requirements of “necessity” and “proportionality” laid down by the CFA in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229.”

28.  With respect, I would not characterize this as a special rule. Rather, it is an exercise of the broad discretion as to costs in circumstances where the other party also appeared in an ex parte application. Similar situation may arise in civil cases other than application for leave to apply for judicial review. Duty judges often have to hear urgent applications which are brought before the court ex parte on notice.  

29.  Speaking on my part, I would prefer not to refer to this as a rule. Perhaps it would be better to refer to this as the starting point. After all, the discretion on costs is broad and unfettered.

30.  The requirement for leave to apply for judicial review is laid down by Section 21K(3) of the High Court Ordinance. Though Order 53 rule 3(2) provides for the application for leave to be made by an ex parte application, for the reasons I have fully set out in Sky Wide v Building Authority [2009] 1 HKC 450 at paras 3 to 9, the court has jurisdiction to hear from a putative respondent and award costs in his favour in such application.

31.  The constitutionality of the leave requirement was considered in Right to Inherent Dignity Movement v HKSAR Government HCAL 74 of 2008, 21 Aug 2008. Echoing the Chief Justice in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 14, the court held that the leave requirement strikes a fair balance in setting a necessary and proportionate condition on an applicant’s access to court by way of judicial review.

32.  One must bear in mind the context in which the question of the costs of a putative respondent would fall to be considered. By that stage, the applicant’s case would have been held to be not reasonably arguable. In such context, if there were no leave requirement and the judicial review application were heard substantively, it would likewise fail and the applicant would, unless the court for good reasons rules otherwise, be liable for the costs of the respondent. Therefore, the refusal of leave does not add to the applicant’s exposure as to costs as compared with a regime without any leave requirement. As a matter of fact, since the costs liability of such applicant would be limited to the costs of the leave application as opposed to the costs for a full-blown judicial review, his exposure is reduced by the leave requirement.  

33.  In this respect, Mr Lee placed emphasis on the ex parte nature of the leave application.  Counsel also invited the court to examine the regime with reference to the duty on the part of an applicant in an ex parte application. I have already explained in previous cases why the nature of the hearing cannot be determinative and why the court may have to hear from the putative respondents in some cases. But in light of propositions (5) to (11) in his submissions as quoted above, I will add the following observations.

34.  It has to be stated clearly and firmly that the purpose of the leave requirement is to filter out unmeritorious cases so that public administration would not be disrupted by such litigations. It is not in the public interest to devote disproportionate time and public resources on challenges which have no merit. The purpose of the leave requirement is NOT to enable a litigant (or those advising him) to come to court to get a second opinion from the judge as to the viability of the challenge. In considering how a leave application should be dealt with, the judge is not acting as the legal adviser of an applicant (who must look to his own lawyers for advice on the viability of his intended claim). Therefore, in deciding how a leave application should be processed and whether the putative respondent should be heard, and if so, the extent to which input should be sought from the putative respondent, the primary concern of the judge is to see which, in the circumstances of the case, is best way to achieve the filtering function.

35.  In Sky Wide, I have described the procedural directions for the disposal of a leave application as the exercise of case management discretion. I still hold such a view and by way of dealing with Mr Lee’s submissions, I need to elaborate on it. As Mr Lee rightly pointed out, an applicant bears a duty of full and frank disclosure in the ex parte application for leave and any breach of such duty may result in leave being set aside. I should add that the duty of full and frank disclosure extends beyond disclosure of material facts, it also extends to disclosure of potential legal answers to the claims of an ex parte applicant. Unfortunately, this duty is not always observed. In my experience as the judge in charge of the Constitutional and Administrative Law List, very often the court is not provided with all relevant information and adequate assistance in the papers filed on behalf of an applicant for the proper performance of its role in the filtering process. Sometimes this may due to the fact that the applicant acts in person. Sometimes it may due to the inadequate instructions given by an applicant to the lawyers. Sometimes it may due to the inadequate investigation of the matter by the lawyers before launching the application. Sometimes it may due to the omissions on the part the lawyers in considering some relevant issues. Sometimes it may due to the insufficient communication between the applicant and the relevant authority resulting in the applicant (and those advising him) not having a full grasp of the reasons for the decision or the decision-making process.

36.  I must emphasize that I am not saying these by way of criticism of applicants or those acting for them. I fully understand that there could well be good explanations for these occurrences and the court will not immediately jump to the conclusion that they are attributable to shortcomings in the preparation of an application for leave. I also understand that those acting for applicants very often have to act under great pressure of time.

37.  But the fact remains that in many cases judges reading the papers for leave require further information and assistance before he or she can be satisfied that the case is reasonably arguable. In addition to the situations mentioned above, the following factors also contributed to the need for asking inputs from the putative respondents,

(a) Constitutional challenges in judicial review are becoming more prevalent. In most of such challenges, an applicant would only set out his grounds of challenge without putting forward any potential justifications for a policy or legislation. Even if some potential justifications were put forward, it would not be comprehensive. As the putative respondent generally carries the burden of establishing the justifications, the court must have inputs from the putative respondent before it can properly perform its role in the filtering process;

(b) There are instances where those acting for applicants only focus on an applicant’s challenge in the material presented to the court without giving serious considerations to the potential answers which a putative respondent may have in respect of the challenge. The court from time to time encounters cases where an advocate, even doing his best in fulfilling his duty in an ex parte application, unwittingly failed to give comprehensive and adequate assistance to the court in terms of the presentation of the potential answers of his opponent;

(c) As Mr Lee acknowledged in proposition (13) of his submissions, there are judicial review applications where the mere granting of leave would have serious implications for the community and the public purse. It is only right that the court will, in those cases, scrutinize the application more intensely in performing its filtering function. The test for granting leave remains the same, whether the challenge is reasonably arguable. But the court should ensure that it has got before it adequate information with regard to the potential answers to the challenge before it decides whether the threshold has been satisfied. As Chief Justice Li observed in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 8, arguability has to be judged with reference to the nature and gravity of the issue to be argued. The more serious the allegation or more serious the consequences, the stronger must be the evidence before a court. In my experience, nowadays, in those cases the putative respondent invariably wrote to the court asking for leave to be heard on the question of leave. Invariably, at the hearing the court received valuable assistance from those representing such putative respondent, drawing attention to matters not adequately canvassed in the applicant’s papers. In that regard, the hearing for leave is better regarded as a compressed ex parte application for leave plus an inter partes application to set aside leave in the spirit of fair, efficient and expeditious disposal of matter in line with Order 1A under the Civil Justice Reform;  

(d) In some of the cases, an applicant has to seek extension of time because the application for leave is made outside the three month time limit. Though in some instances the court may grant extension of time on ex parte basis, in cases where the delay might have great impact or disruptive effect to the relevant administrative process, it is only fair that the court will hear from the putative respondent before granting extension;

(e) In some cases, an applicant also seeks interim relief. The practice of the court is to hear such application for interim relief together with the leave application. Since the grant of interim relief would immediately affect the putative respondent, in general the court will hear submissions from the putative respondent. The arguability of the substantive challenge is an important consideration in the balancing exercise for grant of interim relief.

38.  Thus, Mr Lee’s proposition (5) does not, in reality, necessarily lead to proposition (6).

39.  Though there are cases where the court grants leave on papers, there are also considerable number of cases where the court does not do so. Sometimes, because in the Form 86 the applicant asks for a hearing if leave is not granted on paper, the court is obliged under Order 53 rule 3(3) to hold a hearing even if the case is a hopeless one. However, for the reasons given above, there are quite a number of cases where the court cannot form a definite view on the arguability of the applicant’s case without any input from the putative respondent. According to my experience and understanding, the canvassing of representations from putative respondent at the leave stage is not a rarity in Hong Kong and Mr Lee’s proposition (10) is not correct.

40.  It is a matter of case management for the judge handling the leave application to decide on the manner of seeking comments from the putative respondent. In the past, some judges gave written directions inviting written comments from the putative respondent on specific issues or generally. Recently, a practice has been introduced: where a judge considers that it is necessary for the proper performance of the filtering function in a leave application to have input from the putative respondent after reading the papers filed by the applicant, he or she would give written directions for the service of the papers on the putative respondent and for the filing of a short initial response (usually confined to not more than 3 pages in light of the observations in R (Ewing) v Deputy Prime Minister [2006] 1 WLR 1260) by the putative respondent. The applicant would be given the opportunity to comment on the initial response. If these written exchanges provide the necessary information for the proper performance of the filtering function, an oral hearing can be obviated and costs can be saved thereby. With such practice in place, there is a stronger justification for aligning the position as to award of costs for leave hearing in Hong Kong with that in England as laid down in R (Mount Cook Land) v Mount Eden Land [2004] CP Rep 12.   

41.  But there are cases where the judge may consider that in the circumstances it would be more appropriate to hear from the putative respondent at an oral hearing: e.g. due to the urgency of the matter or the application for controversial interim relief which may cause substantial disruption to a public project or a public matter. As I have stressed before, it is a matter of case management discretion for the judge handling the leave application. The exercise of such discretion is guided by the underlying objectives in Order 1A and the primary concern is the proper, efficient, fair and expeditious performance of the court’s filtering role in a leave application. Chief Justice Li recognized in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 17 that in appropriate cases the court should notify the putative respondent of the leave hearing.

42.  Once the reasons why the court in some cases need to have input from the putative respondent are appreciated, it is not difficult to see the fallacy in Mr Lee’s proposition (12). The court can, after considering the information and submissions of the putative respondent (which should have been provided to the court in order to enable it to perform its filtering role), come to a view that the applicant’s case is hopeless after a “contested” hearing.

43.  I also disagree with Mr Lee’s proposition (11). This proposition proceeds on the premise that an applicant can shield behind the ex parte nature of a leave application from liability for costs. I have already explained why as a matter of practice the court often has to have inputs from the putative respondent in dealing with a leave application.  I have also referred to the characterization of such hearing as a compressed hearing of ex parte leave and inter partes application to set aside leave. It has always been the position that a respondent can apply to set aside an ex parte leave. Apart from challenge based on lack of full and frank disclosure, a respondent can also contend that leave should not have been granted because the applicant’s case is without any arguable merit, see R v Secretary of State for the Home Department, ex p Rukshanda Begum [1990] COD 107; Re Wong Tung Kin [1989] 1 HKLR 93; Canadian Overseas Development v Attorney General [1991] 1 HKC 288; To Kin Wah v Tuen Mun District Officer (No 2) [2003] 4 HKC 213; Kwok Cheuk Kin v Director of Home Affairs HCAL 48 of 2011, 22 Feb 2012. If a respondent is successful in such application to set aside, he would usually get the costs of the application.

44.  The only difference in a contested leave hearing is that the process is compressed. It may be argued that, unless invited by the court to attend, a putative respondent should wait until leave is granted before coming to court to apply for setting the leave aside. But this argument is not a forceful one in the following circumstances,

(a) In cases where the grant of leave itself has serious implications to the public administration and the putative was made aware of the leave application;

(b) In cases where the court requires input from the putative respondent for the proper performance of its filtering role;

(c) In cases where the putative respondent would have to attend court anyway by reason of application for extension of time or application for interim relief.

45.  In those circumstances, it would not be in line with the underlying objectives under Order 1A to delay the process by insisting on the putative respondent to wait until leave is granted. It is also unhelpful to insist that the court must grant leave even though it is aware of the lack of sufficient information and proper assistance from the applicant. Neither is it right to insist that the court should, in the first place, simply adjourn the application and direct the applicant to make further inquiry or conduct further research. The applicant should have put his house in order before he lodges his application. Order 62 rule 5(1)(aa) directs the court, in the exercise of its discretion as to costs, to take into account of the underlying objectives set out in Order 1A rule 1.

46.  In his proposition (14), Mr Lee referred to the chilling effect of a costs order. Similar argument has been advanced in respect of an order for costs in substantive judicial review application and I examined the extent to which weight should be given such factor in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 at paras 24 to 26. In Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362, Ma CJHC (as the Chief Justice then was) also considered similar argument (see para 7). After referring to the authorities, His Lordship said at para 9,

“In my judgment, it is clear from the cases (not to mention as a matter of plain commonsense) that, however important the subject matter of the relevant litigation or however important any particular legal point may be, it is highly relevant for a court (when considering incidence of costs) to evaluate the merits of the failed challenge before it. In other words, the court has to ask itself: how meritorious were the issues raised before it? If the issues that were raised by the unsuccessful applicant were, upon analysis, really quite hopeless, then it is difficult to conceive of a court making any order other than costs following the event.”

47.  In my experience, the number of applications for judicial review has not been diminished since Chu Hoi Dick. In 2012, up to mid September[5], the number of applications in the Constitutional and Administrative Law List is 121. This is in comparison with 109 for the whole year in 2011; 134 for 2010; 144 for 2009; 147 for 2008; 143 for 2007 and 132 for 2006. Based on the figures I have for 2008 to 2010, disregarding cases withdrawn or transferred, leave was granted on average in about 50% of the applications. 66% of the leave applications were dealt with on paper whilst hearings were held in 34% of the cases. In terms of average percentage, putative respondents were heard orally in about 14% of the whole population of cases. In many instances, applicants were covered by legal aid at an early stage of the proceedings. In such cases their personal exposure to liability for costs was limited.  The argument of chilling effect has to be examined against these backgrounds.

48.  In respect of a costs order against an applicant when leave is refused, it is difficult to see how such costs order would have any chilling effect over and above whatever effect a costs order which the court may make in a substantive judicial review. As observed earlier, the refusal of leave implies that the substantive judicial review would not succeed even if leave were to be granted.

49.  In respect of the exercise of the discretion in the present case with regard to the position between the Respondent and Mr Ho, the following are the unusual circumstances,

(a) Mr Ho issued an election petition at the same time when he issued HCAL 84, essentially pursuing the same challenge insofar as the election result of the Chief Executive election is concerned. His purported justification for pursuing HCAL 84 was in reality only a statement of his preference to pursue the challenge by judicial review without explaining why the primary or (as this court eventually held, the exclusive) avenue for challenge by way of election petition should not be the lead action;

(b) The application in HCAL 84 requires an extension of time, on which the Respondent is entitled to be heard;

(c) Mr Ho pursued HCAL 84 to take advantage of Section 39 irrespective of Section 32 of the CEEO. The court has heard full submissions on Section 32 and ruled against Mr Ho;

(d) In respect of the separate challenge based on Article 47 of the Basic Law, again full arguments had been deployed on its construction and the court ruled against Mr Ho;

(e) Mr Ho did not address why he could not deal with the constitutional challenge as to the 7-day time bar under Section 34 in the context of the election petition in his Form 86 or his evidence. After the court gave directions for that issue to be considered in the context of HCAL 85, Mr Ho continued to pursue with his application in HCAL 84 for his tactical reasons (in order to take the benefit of a less stringent time limit under Section 39);

(f) The challenge in HCAL 84 involves the ouster of the Respondent from his office as Chief Executive, a challenge of immense consequence. It was reasonable and sensible for the Respondent to appear to challenge the leave application;

(g) Given the public interest in the speedy determination of the challenges, it was more appropriate for the court to list an oral hearing at short notice instead of inviting written responses from the parties. In this connection, I do not think much mileage can be gained by Mr Lee in his submissions based on the so-called Pre-Action Letter of 26 June 2012. That letter did not refer in any way to the issues which were the focus of the hearing in July: the procedural avenue for challenging the election and the separate challenge based on Article 47. Taking Mr Lee’s submission at its highest, the Pre-Action Letter may only be relevant in the question of costs in HCAL 85 (on which I express no view at this juncture). 

50.  Mr Lee placed emphasis on the public interest in determining whether the Respondent was duly elected. However, as this court held, if viable at all, that issue should and could be litigated in the election petition. Such public interest did not justify Mr Ho’s commencement of concurrent proceedings in HCAL 84. This court actually ruled against him on whatever justifications he prayed in aid by reference to Section 39 and Article 47. It is difficult to see any public interest in having multiple proceedings on the same substantive challenge when one set of proceedings may serve the same purpose.

51.  Mr Lee also submitted that this was the first time when an election of the Chief Executive was challenged and the operation of the CEEO had not been subject to any previous decision by the court. I take this into account. However, I do not think this factor can outweigh the other factors to which I have referred in the overall balance.

52.  On the whole, in the circumstances of the present case I would order Mr Ho to pay the half the costs of the Respondent, such costs is to be taxed if not agreed with certificate for two counsel. In coming to that view, I take account of the fact that Mr Mok had taken considerable time in making submissions on issues relating to false statements, which Mr Lee spent time to respond. I did not rule on these issues in my judgment of 30 July 2012.

53.  Though invited by Mr Mok, I do not think this case called for indemnity costs.

54.  On behalf of Mr Leung, Mr Dykes resisted the costs application on the following grounds,

(a) Mr Leung only challenged the election by way of judicial review and unlike Mr Ho, he did not engage in concurrent challenge by election petition. There was no abuse of process;

(b) Mr Leung’s case was not hopeless because there was no determination on the merits as the false statement claims;

(c) For the same reason, there was no advanced determination of the substantive merits on the false statement claims;

(d) There were good reasons for not making costs order against Mr Leung because,

(i) Mr Leung does not have substantial resources;

(ii) Mr Leung sought to defend public interest instead of his personal interest;

(iii) The issues raised by him have sufficient merit to satisfy the test in Chu Hoi Dick.

55.  Though Mr Leung did not engage in concurrent proceedings personally, he was aware of Mr Ho’s election petition by the time the leave application was heard. He was thus aware that the allegations in respect of the false statements would be considered in the context of HCAL 85. He was also aware that he did not have any locus to proceed by way of election petition. Those issues which he advanced as those of general public importance would be considered by the court in HCAL 85. Mr Leung was not a necessary party to those challenges and there was no reason why the court should allow him to be joined in as his Form 86 was not materially different from that of Mr Ho or the challenges as pleaded in the election petition. Judicial review is a discretionary remedy and when alternative remedy is available the court will not grant leave without good justification. Despite that, Mr Dykes simply put forward some unmeritorious grounds to seek the court’s permission to allow Mr Leung to proceed with HCAL 83, see para 5 of my judgment on 30 July 2012.

56.  The answer to Mr Dykes’ submissions (b) and (c) is the same: the court heard full legal submissions on Section 32 of the CEEO and Article 47 of the Basic Law and ruled against Mr Leung. Except (a) and (e), what I said at para 49 above with regard to the unusual circumstances in the context of HCAL 84 applies equally to HCAL 83. For the reason given in the preceding paragraph, what I said at paras 50 and 51 also apply in answer to Mr Dykes’ submission (d)(ii).

57.  As regards the means of Mr Leung, his solicitors placed before the court a Second Affirmation of Mr Leung in which he set out his income and balance in his bank account. He said out of his income of $73,150 a month as legislator, he would set aside $40,000 each month to support social movement and assist the underprivileged in Hong Kong. Mr Dykes submitted that if Mr Leung is held liable for the costs of the Respondent, he would be made bankrupt and would therefore be unable to perform his public duties as a legislative councilor.

58.  Whilst it is laudable for Mr Leung to set aside his personal income to support goals and causes which he believes in, I do not believe a costs order will lead to the result Mr Dykes contended for. There are many ways to enforce a costs order other than bankruptcy proceedings and it would be, if I may say so, rather injudicious if the Respondent were to pursue the matter by such drastic action without exploring other options first. In any event, as Ma CJHC put it at para 21 of the judgment in Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362 in response to a similar submission advanced on behalf of Mr Leung in that case,

“These points may be relevant in determining the question of costs where a meritorious public interest challenge is made. They carry, in my view, little or no weight when there are insufficient merits. Where there are simply insufficient merits, there is no question of the right of access to justice being in any way undermined either.”

59.  For the reasons I have given in the judgment of 30 July 2012, I do not regard the contentions of Mr Leung on Section 32 and Article 47 as satisfying the merit test in Chu Hoi Dick.  The wordings of Section 32, in particular when read in conjunction with the Chinese version, are very clear. As for Article 47, construing it with Articles 45 and 79(3), it is tolerably clear that the courts in Hong Kong do not have the power to remove a Chief Executive.

60.  I therefore make the same costs order against Mr Leung as the one I make against Mr Ho. Again I will order costs on party to party basis instead of indemnity basis.