KWOK WING HANG AND OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

CACV 541, 542 & 583/2019

[2020] HKCA 837

CACV 541/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 541 OF 2019

(ON APPEAL FROM HCAL 2949/2019)

_______________

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and

CACV 542/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 542 OF 2019

(ON APPEAL FROM HCAL 2945/2019)

_______________

_______________

and

CACV 583/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 583 OF 2019

(ON APPEAL FROM HCAL 2945/2019)

_______________

_______________

(heard together)

______________________________

DECISION ON COSTS

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The Court:

A.  Introduction

1.  In our judgment handed down on 9 April 2020 (“the CA Judgment”), we partially allowed the respondents’ appeals and dismissed the applicants’ cross appeals against the judgment (“the Judges’ Judgment”) and decision (“the Judges’ Decision”) of G Lam and Chow JJ (collectively, “the Judges”) in HCAL 2945 and 2949/2019, respectively dated 18 and 22 November 2019.

2.  At the end of the CA Judgment, we indicated that we would determine costs on paper and parties were directed to lodge their submissions on costs in relation to the appeals and the hearing below.  The parties have since lodged their respective submissions.  We have considered the same and now give our decision on costs.

3.  This decision should be read together with the CA Judgment.  We will adopt the abbreviations used in the CA Judgment unless the context otherwise requires.

4.  In the CA Judgment:

(1)  We allowed the respondents’ appeals under Ground 1 and partially allowed their appeals under Ground 5A, but dismissed the appeals under Ground 5B.  In so doing, we upheld (a) the constitutionality of the ERO insofar as it empowers the CEIC to make emergency regulations on any occasion of public danger, and the constitutionality of section 3(1)(b) of the PFCR relating to unauthorized assembly (Part of Ground 5A).  We also held that sections 3(1)(c) and (d), relating to public meeting and public procession respectively, and section 5 of the PFCR on police powers in relation to facial covering, are all unconstitutional (Part of Ground 5A and Ground 5B).

(2)  We dismissed the KWH-NoCA and KWH-RN, as well as the LKH-NoCA.

5.  In their submissions, the respondents now effectively ask for:

(1)  85% of the costs of their appeals (as they are substantially successful in them)[1], and all the costs of the KWH and LKH’s cross appeals respectively under the KWH-NoCA and KWH‑RN, and the LKH-NoCA (as they are all dismissed).

(2)  85% of all the costs below in relation to KWH and LKH’s judicial review applications before the Judges[2], as in light of the CA Judgment, the respondents are also substantially successful in opposing them[3].

6.  KWH in response principally ask for no order as to costs both in the appeals (“the KWH Appeals”)[4] and below as they say their judicial review application under HCAL 2945/2019 in challenging the ERO and the PFCR comes within the public interest litigation (“PIL”) exception.

7.  For LKH, he asks for (a) no order as to costs in the appeal under CACV 541/2019 (“the LKH Appeal”), and (b) that the costs order in the court below in HCAL 2949/2019 should not be disturbed as the respondents failed in the LKH Appeal.

B.  Costs in the KWH Appeals and HCAL 2945/2019

8.  We will first deal with the contentions relating to the KWH Appeals and the related costs below.

9.  In relation to those costs, the real and effective issue is whether the PIL exception should apply to the judicial review brought by KWH under HCAL 2945/2019 in challenging the constitutionality of the ERO and the PFCR.

10.  The guiding criteria for identifying a PIL are not in dispute.  They have been formulated by Lam J (as Lam VP then was) in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 at [29][5], and can be summarized as follows:

(1)  A litigant has properly brought proceedings to seek guidance from the court on a point of general public importance so that the litigation is for the benefit of the community as a whole to warrant the costs of the litigation to be borne by the public purse as costs incidental to good public administration;

(2)  The judicial decision has contributed to the proper understanding of the law in question; and

(3)  The litigant has no private gain in the outcome.

11.  For the following reasons, we agree with KWH that their judicial review application can be properly regarded as a PIL.

12.  First, we accept that the principal issues arising from the judicial review relate to points of general public importance the determination of which is for the benefit of the community:

(1)  There can be no dispute that the ERO, which can be invoked by the CEIC on any occasions of “public danger”, is by definition an important piece of legislation that relates to matters of general public importance.  It is indeed the respondents’ own position that the ERO is important for the CEIC to have proper and effective administration of Hong Kong pre and post 1997.

(2)  In the premises, its constitutionality and validity in the post‑1997 constitutional order under the BL and the BOR must also be related to matters of general public importance.

(3)  Similarly, whether the PFCR, which is enacted for the first time under the ERO for the purpose of combating an occasion of “public danger”, is constitutionally valid must therefore relate to questions of general public importance.

(4)  The determination of these questions therefore must be for the benefit of the community as a whole, as the general public would need to be clear as to whether, and if so as to what extent, their conducts and activities are lawfully subject to the regulation of the PFCR made under the ERO.

13.  Second, as accepted by both parties and stated in the CA Judgment, it is the first time these principal legal questions raised in the judicial review and the appeals are to be considered by the courts.  The judicial decisions made in relation to these questions therefore plainly contribute to the understanding of the law in this area.

14.  Finally, KWH have said in their evidence that they brought the proceedings in their capacity as LegCo members raising genuine concerns as to whether the ERO usurp the function of the legislature by conferring unfettered legislative power to the Executive and thereby undermining and circumventing the BL.  As to the PFCR, it is also not their evidence that they would personally wear masks or other facial coverings to public assemblies or processions.  They brought the challenge out of their concern that the restriction on facial coverings would restrict or prevent the otherwise peaceful and law abiding residents from exercising their fundamental right to assembly, procession and expression.  The respondents had not adduced any evidence to dispute or cast doubt on KWH’s avowed position.  Thus on evidence, KWH as applicants do not have any private gain in bringing the proceedings.

15.  Mr Suen SC for the respondents[6] however contends that the judicial review application does not satisfy the criteria for being a PIL by advancing the following submissions.

16.  Mr Suen first submits that it is erroneous for KWH to suggest that the challenge in these proceedings is meant to serve or has served the interest of the community as a whole.  This is so as it is an “indisputable fact” that a very significant number of people in Hong Kong were and still are in support of what the CEIC had done in seeking to halt the most disorderly and violent times Hong Kong had seen in the past 50 years.  This is particularly so as even KWH themselves have disavowed any claim that the PFCR was enacted in bad faith, or that the ERO and PFCR have not served the interest of the entire community.

17.  Counsel also says there is undisputed evidence showing that immediately after the announcement of the Judges’ Decision (as to relief), there were calls in online platforms encouraging the netizens to attend the Yau Tsim Mong area with their masks to support those protestors and rioters remaining in the PolyU and that a large number of masked protesters did respond to such call.[7]  The escalated violence and the disastrous outcome in that hapless saga had been witnessed by all.  KWH and LKH might, for whatever reason, never have considered the violence or escalation thereof to be warranting immediate governmental action by way of passing the PFCR as an indisputably beneficial statute, but the point is that the litigation is not and cannot be said to be beneficial to the society as a whole.

18.  With respect, we are not persuaded by these submissions.  It is beyond dispute that, notwithstanding the absence of any bad faith allegations, the CEIC must bona fide act in accordance with and within the powers given by the law.  This is fundamental and crucial to the notion of rule of law.  This is especially the case for the ERO which gives the CEIC extensive power to enact emergency regulations.  In this respect, as mentioned above, this is the first time the constitutionality of the ERO and the PFCR is considered by the court against the BL and the BOR. It must therefore be of interest to, and thus for the benefit of, the whole Hong Kong community for the question of whether the CEIC had acted lawfully by invoking the ERO in enacting the PFCR to be resolved by the court.

19.  Further and in any event, the meaning of the word “general” in “general public interest” in a PIL exception inquiry does not necessarily require that the subject issue must be of interest to all the public nationally or would directly affect all of them.  See: Designing Hong Kong v Town Planning Board [2015] 3 HKC 525 at [37], citing R (Crompton) v Wiltshire Primary Care Trust [2009] 1 All ER 978 at [24] per Walker LJ (as he then was), and at [77] per Smith LJ.

20.  The question is ultimately a matter of degree to which the requirement may be satisfied.  It is an objective exercise where the court would pay regard to the qualitative significance of the issues at stake.  See Designing Hong Kong, supra, at [36], citing Crompton at [24] and [75] and Chu Hoi Dick at [26].

21.  In our view, given the significant and general effects of the ERO and the PFCR on the general public, objectively the question of their constitutionality and validity must at least be of significance and interest to a large group of the general public, and thus meeting the criterion of “general public interest”.

22.  Mr Suen next says it is relevant to have regard to the utility of litigating the matter in a court of law as opposed to the ventilation of the objection by other channels.  Counsel points out that, as held by this Court, emergency regulations made under the ERO are subject to the negative vetting procedure (CA Judgment [134], [147] ‑ [152]).  There is a first phase of scrutiny whereby the regulations may take effect pending expiry of the time limit of 28 days, which may be extended for 21 days.  If repealed during negative vetting, the regulations will not last beyond such time limit.  Further, even if the regulations continue to take effect despite negative vetting, there is a second phase of scrutiny whereby the LegCo can further review them.  Given that KWH comprises 24 current members of the LegCo, there is little utility for them to litigate the matter in court as opposed to resorting to the channel of the negative vetting procedure.

23.  With respect, this contention does not assist the respondents.  As we mentioned above, the core questions in the challenge are the constitutionality and lawfulness of the ERO and the PFCR under the BL and the BOR, and whether it is lawful for the CEIC to invoke the power under the ERO to enact the PFCR.  These questions can only be determined by the court.  The availability of another avenue (the negative vetting process) for the LegCo members (including KWH) to “scrutinize” the PFCR is neither here nor there.

24.  Finally, Mr Suen submits that the failed parts of KWH and LKH’s challenge are not sufficiently meritorious to justify departure from the usual costs order.  This is a fortiori the case for their challenge of (a) Grounds 2 to 3 and the issues of legitimate aim and rational connection under Grounds 5A and 5B (which the Judges rejected), and (b) Ground 4 (which the Judges considered to be inconsistent with Ground 1), which KWH and LKH unreasonably maintained and pursued in their cross‑appeals.

25.  We also cannot agree.  As submitted by KWH, the test for the merits of the underlying challenge in judicial review in a PIL exception inquiry is the same as the one required for the grant of leave to apply for judicial review, that is, whether the grounds are reasonably arguable with a realistic prospect of success.  See: Designing Hong Kong, supra, at [34], citing Chu Hoi Dick at [23] and Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362 at [12(3)] per Ma CJHC (as the Chief Justice then was).  The grounds of challenge raised by KWH clearly satisfied this requirement as leave was granted to them to apply for judicial review.

26.  In the premises, we agree that the KWH judicial review falls within the PIL exception.  In the premises, the proper costs order for the KWH Appeals and HCAL 2945/2019 should be no order as to costs.

C.  The costs of the LKH Appeal and HCAL 2949/2019

27.  We now turn to the costs in relation to the LKH Appeal and HCAL 2949/2019 (brought by LKH).

28.  We have dismissed LKH-NoCA, which relates to LKH’s cross-appeal in the LKH Appeal concerning Grounds 3 and 5B (where LKH sought to cross‑appeal against the Judges’ conclusion that section 5 of the PFCR satisfied the legitimate aim and rational connection limbs of the proportionality test) (see the Judges’ Judgment, [9] and [10]). As a starting point, the respondents should therefore have the costs of it.

29.  On the other hand, as pointed out by Mr Pun SC[8] for LKH, the respondents have also failed in the LKH Appeal (which relates only to an appeal from HCAL 2949/2019 under Ground 5B).  In this respect, LKH should be entitled to the costs of that appeal.

30.  Taking the matters in the round, and given that the time incurred in dealing with issues raised in the LKH Appeal and the LKH‑NoCA is similar, we agree with Mr Pun that a just and fair costs order in these circumstances is that there should be no order as to costs for the LKH Appeal (which includes the LKH-NoCA).

31.  In relation to HCAL 2949/2019, LKH was only granted leave to pursue his judicial review on Grounds 3 and 5B (which are respectively Grounds 2 and 4 in his Amended Form 86)[9].  LKH succeeded under Ground 5B but failed on Ground 3 before the Judges and was awarded 80% of the costs of the judicial review.

32.  As mentioned above, the respondents’ appeal from HCAL 2949/2019 (ie, the LKH Appeal) is only against the Judges’ order in allowing the judicial review under Ground 5B.  The respondents have however failed in that appeal.  In the premises, we agree with Mr Pun that there is no basis for this Court to disturb the costs order made in the LKH judicial review. This is particularly so given that there is no separate and independent basis to appeal against the costs order alone.  See: Hong Kong Civil Procedure 2021, Vol 1, at paragraph 62/2/11.

D. Disposition

33.  For the above reasons, we make the following orders in relation to costs:

(1)  There will be no order as to costs in CACV 542 (including the costs of the KWH-RN) & 583/2019 (including the costs of the KWH-NoCA).

(2)  The costs order of the Judges in HCAL 2945/2019 dated 22 November 2019 be set aside and be substituted with no order as to costs.

(3)  There will be no order as to costs in CACV 541/2019 (which includes the costs of the LKH-NoCA).

34.  We thank counsel for their assistance.