XCHRX YU YAU TAK v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 43/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 43 OF 2000

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RULING AS TO COSTS

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1. In a judgment handed down on 30 June of this year, I dismissed the Applicant's application for judicial review, making an order nisi that costs be awarded to the Respondents, to be taxed if not agreed. The Applicant has come back before me this morning to contest that order nisi. Mr Delaney, who appears for the Applicant, has argued that although costs normally follow the event, and although it requires a strong or exceptional case to deprive a successful party of its costs in matters of this kind, nevertheless the court does have an inherent discretion and there are good reasons why it should be exercised in this case. Mr Delaney has listed a number of matters which he contends, taken individually or together, constitute those good reasons. However, with respect, only one of those matters causes me any concern.

2. In this regard, Mr Delaney has submitted that the wording of the tribunal in its judgment was fundamentally lacking in clarity and explanation, and was unhappily worded to the extent that, on the face of it, the tribunal appeared to be saying something patently unsupported by the evidence. As a result, the Applicant was left with no choice but to pursue his action.

3. In response, Mr Westbrook, who appears for the Respondents, has argued, in broad principle, that a court has no right to deprive a successful party of its costs on the grounds that the course of action taken by the unsuccessful party may have been a reasonable one. He has submitted that the tribunal, in reaching its judgment, did so on the basis of the previous rulings by Sears J and Findlay J and that, even though the police general order in issue may have been somewhat ambiguous and may have required interpretation, that of itself is no reason to deprive the respondents of their costs. As he has put it, there are many cases that come before our courts when the issue concerns the ambiguous wording of commercial contracts, public documents and the like and when effectively the court is asked to give a definitive ruling as to the correct interpretation. However, the fact that the initial course may have arisen out of some ambiguity does not mean that the unsuccessful party is released from any liability for costs. In that regard, I agree.

4. What cause me hesitation, however, is the fact that a tribunal, if it does give reasons, has an obligation to give reasons that are of sufficient clarity as to be understandable. In light of the earlier judgments of Sears J and Findlay J and in light of the less than happy wording of the police general order in question, I believe it can reasonably be argued that the tribunal had an obligation to so explain itself in its reasons that it would not place the Applicant in the invidious position that Mr Delaney has described.

5. Mr Westbrook has said that he has some sympathy for the Applicant. I agree. But it is not sympathy in its purely emotive sense that underlines my reasoning. I appreciate the difficulties brought about by the lack of clear reasoning by the tribunal and I think that - to some degree - that should be reflected in the costs order that I make.

6. Each case must be considered according to its own merits. I am not in this extempore ruling attempting to extend or qualify the general principles as to the award of costs that have been so carefully outlined to me by both counsel. But, having regard to the particular facts of this matter, and having some sympathy for the position that the Applicant must have found himself in with his legal advisers, I think that it would not be proper of me to award all the costs to the Respondents.

7. How then am I to apportion costs? It is always a question of balance and the exercise of judicial discretion to try and reflect the inherent justice of the matter.

8. My final order as to costs, therefore, is as follows:

1. That the Respondents are awarded 70% of their costs, to be taxed if not agreed.

2. That the costs referred to above are not to include the costs of making the application to challenge the order nisi; in this matter there will be no order as to costs.