LEUNG HON WAI v. DIRECTOR OF ENVIRONMENTAL PROTECTION AND ANOTHER

HCAL 49/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 49 OF 2012

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D E C I S I O N   O N   C O S T S

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1.  On 26 July 2013, I handed down judgment (“the Judgment”) dismissing the applicant’s judicial review application.  I also made an order nisi (“costs order nisi”) that the respondents shall have the costs of the application.

2.  This is the hearing of:

(1) The applicant’s summons to vary the costs order nisi to the extent that there be no order as to costs.

(2) The respondents’ summons to vary the costs order nisi to the extent that it should include the costs of the leave application which has been reserved.

3.  For convenience, I would adopt the abbreviations used in the Judgment herein.

4.  I will deal with the applicant’s application first.

5.  In relation to costs in judicial review application, the general rule is still that costs should follow the event, and it is for the applicant to show why this general rule should be parted from: Leung Kwok Hung v The President of the Legislative Council (unrep., HCAL 87/2006, 27 April 2007, Hartmann J), paragraphs 15-19.

6.  The principal ground advanced by the applicant in support of this application is that the judicial review is a public interest challenge and thus he should not be liable to pay costs.

7.  In relation to when a so-called public interest litigation would constitute an exception to this general rule, Lam J (as he then was) in Chu Hoi Dick v Secretary for Home Affairs (unrep., HCAL 87/2007, 6 September 2007) has laid down the following guiding principles:

(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 (understood objectively) to warrant the costs of the litigation be borne by the public purse as costs incidental to good public administration;

(2) The point of general public importance should lie in the clarification of the law, or (in some instances) of how the law is to be applied in a particular factual matrix, for the benefit of the community as a whole;

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

(4) The litigant has no private gain in the course.

See paragraphs 16-29 of Chu Hoi Dick.

8.  Further, even if the above public interest elements are satisfied, the court would still look at other relevant factors such as the conduct of the litigant before deciding the question of costs, which is ultimately a matter of discretion.  See paragraph 30 of Chu Hoi Dick.

9.  Thus, as Ms Sit for the respondents has rightly submitted, the starting position is that even where the judicial review challenge is in the public interest, there is no automatic immunity from costs, and the power of the court to grant such immunity would only be exercised occasionally: Leung Kwok Hung v the President of the Legislative Council, supra, paragraph 25; Chu Hoi Dick, supra, paragraph 14.

10.  Applying the above principles, I do not think the Grounds 1 to 5 raised in the judicial review come within the public interest litigation exception to justify no order as to costs.  I accept Ms Sit’s submissions that these parts of judicial review could not be described as properly brought to seek guidance on a point of general public importance:

(1) There is no question of law of general public importance that called for determination in the present case. The principles concerning the interpretation of the TM and the SB are well established and not disputed in the present case (see: paragraphs 26-30 of the Judgment).  Grounds 1 to 5 relate to the interpretation of the relevant provisions in the TM and the SB under the well settled principles.

(2) There are therefore no issues of clarification of law or how the law should be applied raised in this judicial review.

(3) The decisions in the judicial review would not have contributed to the proper understanding of the law in question.

11.  Moreover, it is pertinent to note that, insofar as the issues sought to be ventilated in the judicial review in fact concern differences in political or social judgment, the application would also not be regarded as properly brought for public interest purpose: Chu Hoi Dick, supra, paragraphs16-20.

12.  For the above reasons, for Grounds 1 to 5, I do not think the applicant can establish that he falls properly within the public interest litigation exception to the general rule of costs following the event.

13.  Grounds 6 to 7 however demand separate consideration.  I am satisfied that they raise an issue of law of general public importance specific to EIAO.  That is, as a matter of law, whether, and if so how, the Director as the person entrusted with the sole authority to overlook the statutory EIA process could also participate in the process as the applicant herself.  To that extent, I think the relevant decision in that part of the judicial review contributed to the proper understanding of the law in question and in furtherance of good public administration.

14.  I therefore accept that insofar Grounds 6 and 7 are concerned, they do fall within the public interest litigation exception as explained in Chu Hoi Dick.

15.  Mr Yim for the applicant also seeks to support generally his application by inviting the court to consider devising special rules for environmental cases.  He says this court should take into account the proposals in the Jackson Final Report in England.

16.  I accept Ms Sit’s submissions that there are at present no justifications in Hong Kong to have a blanket adoption of the proposals in the Jackson Final Report to support having special rules for environmental cases on the basis as advanced by Mr Yim:

(1) First, the English position on costs in environmental cases is grounded on the international and EU obligations of the UK under the Aarhus Convention (UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), to which Hong Kong is not a signatory.

(2) Second, in Hong Kong there is no separate and distinct body of environmental law, and the issue of costs in public interest litigation has been adequately catered for by the discretion of the court on the established principles set out in Chu Hoi Dick.

(3) Third, even the English court did not consider it appropriate that the Jackson proposals when they came out should be introduced by way of judicial decision, but is a matter for legislative intervention: see Morgan and Baker v Hinton Organics [2010] 1 Costs LR 1 (CA), paragraph 47(v).

17.  Mr Yim further argues that this is a “test case” and thus the applicant should not be required to pay costs.

18.  I also reject this submission.  In light of my conclusion above at paragraph 10 that the substantial part of the judicial review does not raise any question of law that is of general public importance or for the benefit of the general community, I do not think labelling the present case as a “test case” would take the applicant’s position any further or different from the general principle set out above when the unsuccessful applicant seeks immunity from costs.

19.  For all the above reasons, I would allow the applicant’s application to vary the costs order nisi to the extent that the applicant should only be required to pay two-thirds of the costs of the judicial review application to reflect the position that the issues raised under Grounds 6-7 do fall within the public interest litigation exception.

20.  I now turn to the respondents’ application.

21.  The respondents say they should have the costs of the leave application, since it is by now clear that the judicial review has no merits.  Moreover, Ms Sit contends that the well established principle[1] that an unsuccessful applicant in a contested leave application should not be required to pay costs unless there are exceptional circumstances should not apply in the present case. This is so as (Ms Sit says) this court has expressly reserved costs at the leave hearing.

22.  With respect, I do not accept Ms Sit’s arguments.

23.  Given the above general position that even an unsuccessful applicant for leave would not be required to pay costs for a contested leave application save there are exceptional circumstances, I think it should take at least similar or even more exceptional circumstances to justify that a successful applicant for leave should be ordered to pay the costs of the leave application albeit he fails at the substantive application (where costs is already made against him for that).

24.  The reason that this court has reserved costs at the leave application in the present case is more for the purpose to see whether at the end, the respondents (who had applied to be heard) shall be required to pay the costs of the leave application which they had unsuccessfully resisted.  It is not the other way round save there are exceptional circumstances.

25.  Ms Sit also emphasises in her application that the result of judicial review shows that the judicial review lacks any merits.

26.  I am unable to accept that.  In my view, although the applicant has failed ultimately in the judicial review, it does not mean that per se the judicial review is so devoid of merits that the applicant should also pay the costs of the leave application.  It must be noted that he was in fact successful in his leave application.

27.  For these reasons, I would refuse the respondents’ application to vary the costs order nisi.

28.  As agreed by both parties, in the circumstances of the above outcome, the just and fair costs order for both applications is that there be no order as to costs.  I further order that the costs of the applicant be taxed in accordance with legal aid regulations with certificate for two counsel.

29.  Lastly, I thank counsel’s assistance in these matters.