RE HO CHUN YAN, ALBERT

FAMV Nos 21, 22, 24, 25, 26, 32, 33 and 34 of 2012

FAMV No 21 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 21 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 84 OF 2012)

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FAMV No 22 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 22 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 83 OF 2012)

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FAMV No 24 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 24 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

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JUDGMENT ON COSTS

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Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Tang PJ:

1.  In our determination of 13 November 2012, we concluded that the challenges asserted by Mr Albert Ho[1] and Mr Leung Kwok Hung[2] against the election of Mr C Y Leung “are not reasonably arguable and that such challenges must therefore be brought to an end”.   We also gave the parties liberty to apply for costs. 

2.  Mr C Y Leung now applies for costs against Mr Albert Ho and Mr Leung Kwok Hung.  We are told that Mr C Y Leung is paying the legal fees incurred in the election petition and judicial review personally. It is submitted on behalf of Mr C Y Leung that these proceedings are in the nature of hostile, adversarial litigation and that costs should follow the event.  It is also said that in the case of the petition election, Mr Ho, as the losing candidate, had a personal interest since he might be a candidate in a new election. 

3.  We see no reason why in election petitions, costs should not follow the event.  In Mok Charles Peter v Tam Wai Ho, an election petition regarding an election to the legislative Council, costs were ordered to follow the event in all levels of the court.[3] 

4.  As for the applications for judicial review, prior to the intervention of the Secretary for Justice, the only real protagonists were Mr Albert Ho, Mr Leung Kwok Hung and Mr C Y Leung.  This is not the usual type of case discussed in Chu Hoi Dick & Another v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 where the question is:

“…whether the applicant or the general public should bear the costs consequences for his action.”[4]

5.  In these proceedings, Mr Albert Ho and Mr Leung Kwok Hung complained of two statements made by Mr C Y Leung as constituting materially false or misleading statements falling within the Elections (Corrupt and Illegal Conduct) Ordinance (“ECICO”) s 26(2) and thus supplying a basis for questioning Mr C Y Leung’s election.  Lam JA struck out the first statement and held that the challenge based on the second statement had no real prospect of success.  We have refused leave to appeal.

6.  In Chan Noi Heung and others v the Chief Executive in Council [2009] 3 HKLRD 362, Ma CJHC (as he then was) said with the concurrence of the other members of the Court that:

“9. …however important the subject matter of the relevant litigation … it is highly relevant for a court (when considering the 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.”

7.  Here, the reliance on the two statements, the foundation of the  complaint, was plainly hopeless.  There is no reason for costs not to follow the event. 

8.  On behalf of Mr Albert Ho, it is submitted that costs should not follow the event or that it is premature to determine the costs of the leave applications because the Court has granted leave to appeal on 2 academic questions of law and a third question on costs as follows:

“(a) ‘Under the CEEO, how do challenges to a CE election pursuant to the election petition procedure in section 32 relate to challenges pursuant to the judicial review procedure in section 39?’ (‘the 1^st Academic Question’)

(b) ‘Does the seven-day time limit laid down by CEEO section 34 involve any infringement of the right of access to a court guaranteed by Article 35 of the Basic Law, and if so, is such time limit unconstitutional?’ (‘the 2^nd Academic Question’)

(c) ‘[T]he costs orders made against each of Mr Ho and Mr Leung by Lam JA pursuant to his judgment dated 28 September 2012’ (‘the Question on Costs’)”

9.  The academic questions are academic because they have no bearing on the outcome of these proceedings.  That’s why we said in the Determination:

“Mr Ho and Mr Leung may or may not wish to participate.”

10.  These academic questions should not affect Mr C Y Leung’s position regarding the costs of the leave applications.

11.  So far as the Question on Costs is concerned, since we have granted leave, any costs attributable to this appeal, should be the costs of that appeal.

12.  There is no reason why the taxation or payment of the rests of the costs should await the determination of the appeal on the Question of Costs, or any of the Academic Questions.

13.  We order that the costs of Mr C Y Leung in relation to the applications for leave by Mr Albert Ho and Mr Leung Kwok Hung to be paid by Mr Albert Ho and Mr Leung Kwok Hung respectively, such costs to be taxed unless agreed.  The costs of Mr Albert Ho and Mr Leung Kwok Hung’s application for leave to appeal in respect of the costs orders made against each of them by Lam JA pursuant to his judgment dated 28 September 2012 to be in the cause of that appeal.