LEUNG KWOK HUNG v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

HCAL 64/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 64 OF 2012

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JUDGMENT ON COSTS

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1. I have now considered the written submissions on costs filed by the parties pursuant to my directions in my judgment of 25 May 2012.

2. The discretion on costs is a broad one and the starting point is that costs in an unsuccessful leave application for judicial review should only be awarded in favour of putative respondent or putative interested party in exceptional cases: see Sky Wide Development v Building Authority [2011] 5 HKLRD 202 and Re Ho Mei Ling (No 2) [2012] 1 HKC 400.

3. What amounts to exceptional circumstances depends on the facts and issues raised in each case.  The court should have regard to the public policy on ready access to courts whilst, in exceptional cases, give protection to public bodies and public funds from unnecessary, burdensome and costly litigation.  A non-exhaustive list of features indicative of exceptional circumstances was given by Auld LJ in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 at para 76(5).  I have cited the passage in Re Ho Mei Ling (No 2) [2012] 1 HKC 400 at para 25 and there is no need for me to repeat the exercise.

4. As I have also emphasized in Re Ho Mei Ling (No 2) [2012] 1 HKC 400, the discretion can be exercised against an unsuccessful applicant even in cases where the court does not find the application to be frivolous, vexatious or motivated for a tactical purpose that indicates bad faith.

5. Right from the very beginning of this matter, this court expressed concern over the potential disruption to the legislative process in view of the application for interim injunctive relief.  It was partly due to that concern that on 17 May 2012 the court directed an inter partes hearing be held.  The application was maintained until the tail end of Mr Lee SC’s opening submissions at the hearing on 18 May 2012.  Thus, even though the matter first came before the court on 17 May as an ex parte application, it is beyond question that the hearing on 18 May was an inter partes hearing.  However, as I said in Re Ho Mei Ling (No 2) [2012] 1 HKC 400, whether the hearing is ex parte or otherwise is not determinative on the question of costs.

6. What is more important, in the present context, is the implication flowing from the belatedly aborted application for interim relief.  We are not concerned with an interim stay to an administrative decision which only affects the Applicant.  We are dealing with the intervention in the law-making process.  By reason of its potential disruption on the legislative process, it cannot be suggested that the putative respondent and the putative interested party should wait until leave is granted before coming to court.  There was no indication that the application for interim relief would not be dealt with together at the leave hearing.  I accept the submissions of Mr Yu and Mr Pao that their clients acted reasonably in attending the hearing on 18 May to resist the application for interim relief.

7. Mr Lee submitted that the application of the Applicant was not a hopeless one.  Whilst I accept that the refusal of leave per se does not necessarily mean that the application is hopeless, Mr Yu SC and Mr Pao are correct in pointing out that the Applicant had completely failed to address the principle of parliamentary privilege in the Form 86 and the Outline of Submissions placed before the court on 17 May.  Having personally been involved in Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387 and Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, the Applicant should be familiar with this principle.  As analysed in my substantive judgment of 25 May 2012, when the matter is considered properly against this principle, the present application is indeed a hopeless one.  There is simply no proper basis warranting the court’s intervention in the legislative process in this instance.  This difficulty in the application was highlighted by the court at the conclusion of the hearing on 17 May.

8. The Applicant had re-aligned his submissions at the hearing on 18 May and prayed in aid the exception mentioned by Lord Bingham in the Bahamas case.  As explained in my substantive judgment, the actual decision in that case was against the Applicant.  This underscores the hopelessness of the application.  This is compounded by the lack of immediacy as to the prejudice or damage which may be caused by the passing of the Bill as decided by this court in HCAL 45 of 2011.

9. Full arguments have been deployed on the application of the principle of parliamentary privilege and the constitutional rights of the Applicant.  The hearing on 18 May was in substance a rolled-up hearing.

10. Mr Lee advanced three additional reasons to contend that the discretion on costs should not be exercised against the Applicant,

(a)   He does not have substantial resources;

(b)   He seeks to defend some public interest instead of his private personal interest in this application;

(c)    He raised issues which satisfy the test laid down in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 and Chan Noi Heung v Chief Executive in Council CACV 197 of 2007, 16 March 2009.

11. I cannot accept these reasons.  Though the availability of substantial resources is one of the features referred to by Auld LJ in Mount Cook, I do not understand His Lordship to be saying that the lack of substantial resource would take a case out of the exceptional category when there are other features which render it exceptional.  In any event, the Applicant has not provided this court with evidence on his means. The mere fact that he lives in public housing is not sufficient evidence to support counsel’s assertion that he would be made bankrupt if he is ordered to pay costs.

12. The second and the third reasons can be dealt with together.  It is clear to me what the Applicant tried to achieve by this judicial review.  He hoped to persist in the filibustering tactics and establish a legal right to filibuster.  Irrespective of any political consideration, there is no such constitutional right and, with respect, the attempt to establish such right by these proceedings is not a defence of some public interest.  Whilst the Applicant would not have any financial gain out of the challenge, he certainly had his political agenda in mind in the pursuit of this application.  I also agree with Mr Yu and Mr Pao that given the hopelessness of the application and the well-established principle on parliamentary privilege the Applicant cannot satisfy the test laid down in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 and Chan Noi Heung v Chief Executive in Council CACV 197 of 2007, 16 March 2009.

13. The ultimate question is whether there are exceptional circumstances in this case warranting the departure from the starting point.  In my judgment, given what I have said above, there are exceptional circumstances and this is clearly an application which should not have been pursued.

14. I order the Applicant to pay the costs of the putative respondent, such costs to be taxed if not agreed.

15. As for the costs of the putative interested party, though I understand why the administration had a separate concern in resisting interim relief, the relevant principles for awarding a further set of costs are spelt out in the judgment of Ma CJHC (as he then was) in Shiu Wing Steel Ltd v Director of Environmental Protection CACV 350 of 2003, 18 March 2005, at para 158.  Though the court is grateful for his assistance, I do not think any separate issue has been raised by Mr Pao in his submissions.  I have not overlooked that the papers were served on the Secretary at the direction of this court.  But I do not think that the circumstances of the present case warrant ordering two sets of costs against the Applicant.  I will make no order as to costs as between the Applicant and the Secretary for Justice.