KWOK CHEUK KIN v. SECRETARY FOR JUSTICE

CACV 8/2019,
CACV 10/2019,
CACV 87/2019
and CACV 88/2019
(Heard together)

[2021] HKCA 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 8 OF 2019

(ON APPEAL FROM HCAL 1165/2018)

________________________

________________________

AND

CIVIL APPEAL NO 10 OF 2019

(ON APPEAL FROM HCAL 1178/2018)

________________________

________________________

AND

CIVIL APPEAL NO 87 OF 2019

(ON APPEAL FROM HCAL 1160/2018)

________________________

__________________________

AND

CIVIL APPEAL NO 88 OF 2019

(ON APPEAL FROM HCAL 1164/2018)

__________________________

________________________

DECISION ON COSTS

________________________

Hon Lam VP (giving the Decision on Costs of the Court):

1.  We handed down our judgment on 11 June 2021 dismissing these appeals and directing the parties to lodge submissions on costs.

2.  The Applicants lodged their respective submissions on costs on 25 June 2021.  They all relied on the public interest litigation exception and contended that there should be no order as to costs in the appeals.

3.  The Respondents lodged submissions on 25 June 2021 seeking costs from the Applicants.  Whilst it was not disputed that the public interest litigation exception could be applicable in the present appeals, Mr Chan submitted on behalf of the Respondents that the exception is only one of the factors relevant to the determination of costs.  Counsel submitted that the Applicants’ challenge was plainly unmeritorious for the following reasons:

(a)     By applying the well settled “living instrument” doctrine and purposive and contextual interpretation of the Basic Law, the Court had no difficulty in concluding that the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance Cap 632 (“the Ordinance”) is constitutional and it is compatible with the high degree of autonomy under “One Country, Two Systems” to establish the Mainland Port Area at the West Kowloon Station; and

(b)     Even assuming that BL 18 and 19 were engaged, the Ordinance would still be constitutional as it clearly satisfies the proportionality assessment.

4.  The public interest litigation (“PIL”) exception is well established in our jurisprudence and it has recently been applied by this Court (Poon CJHC, Lam VP and Au JA) in Kwok Wing Hang v Chief Executive in Council [2020] HKCA 837 and Kwok Cheuk Kin v Director of Lands [2021] HKCA 915.  At [10] of the latter case, the relevant criteria for PIL were 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, so as 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.

5.  As stated at [11], [20] and [21] of that judgment, even if these criteria were satisfied the courts still have a discretion to order costs against an unsuccessful applicant if it is fair and just to do so.  In Kwok Wing Hang v Chief Executive in Council, supra, at [20] it was held that it is a matter of degree to which the PIL criteria were satisfied and it was an objective exercise where the court would pay regard to the qualitative significance of the issues at stake.  Also there are cases where other strong and cogent factors weigh against the PIL factor.  Some of the examples given are that where an applicant has wasted the court’s time and that the issues raised are plainly unmeritorious.

6.  In the present appeals, we can readily accept that criteria (1) and (3) are satisfied.  Subject to his contentions on the appeals lacking in merits, Mr Chan had not advanced anything to dispute this.

7.  As regards criterion (2), in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 at [46], the Court emphasized that it has to be a significant contribution to a point of general public importance.

8.  Further, in the application of that criterion, the position on appeal has to be considered separately from the position at first instance.  By the time of the appeal, there is already a first instance judgment providing guidance on the law.  Whilst there are cases where the complexity and importance of the legal arguments warrant an appellate decision (and thus satisfying criterion (2)), there are also cases where the issue in question is not complex and the first instance judgment has clearly explained the law so that an unsuccessful appeal did not add much to the clarification of the point of general public importance.

9.  Thus, as a matter of principle, Mr Chan is correct in his submission that the fact that Chow J (as he then was) had decided that there should be no order as to costs on PIL ground at first instance is not determinative as regards the costs of the appeals.

10.  With these principles in mind, we have given due consideration to how the discretion as to costs should be exercised in the present appeals.  In our judgment, there should be no order for costs in all the appeals (including the costs of the submissions on costs) by virtue of the PIL exception.

11.  First, we do not regard the present appeals as so manifestly devoid of merit that they cannot be regarded as having been properly brought.  With respect, Mr Chan had simplified the niceties of the competing arguments on the compatibility of the Ordinance with BL 18 and 19. As is evident from a reading of our judgment of 11 June 2021, the resolution of the issue depends greatly on having a proper perspective as to fundamental notions underlying the “One Country, Two Systems” principle and the proper understanding of the bounds of the high degree of autonomy under the Basic Law in respect of matters falling within the interface between the Mainland system and the Hong Kong system.  These were matters which merited serious consideration by the Court of Appeal.

12.  The proportionality analysis was not considered by Chow J to be the correct approach to address the central question in these cases.  This Court did not dissent from that analysis though we considered the proportionality argument briefly by way of alternative discussion for the sake of completeness.  In these circumstances, it cannot be said that the Applicants did not bring the appeals properly because the court had already held against them on proportionality and they did not have a real prospect of overturning such holding.  

13.  Second, we are of the view that the issue raised is one of great general public importance which should be considered by this Court for the benefit of the community notwithstanding the judgment of Chow J.  As submitted on behalf of the Applicants, the issue arose out of a novel situation and as acknowledged by everybody in these appeals it is not a situation envisaged at the time when the Basic Law was promulgated.

14.  Third, notwithstanding the very helpful judgment of Chow J, the exposition on “One Country, Two Systems” and the interface between the two systems and the significance of the NPCSC Decision on such matters discussed in the judgment of 11 June 2021 shed new light on these topics which are important to the proper understanding of the law.

15.  There is no doubt that criterion (2) is satisfied.

16.  Mr Chan also submitted that the Applicants had unnecessarily instructed three teams of lawyers and raised numerous irrelevant and hopeless arguments as conduct relevant to the exercise of discretion on costs.

17.  There were altogether four sets of proceedings in the court below.  We noted that two sets of proceedings are funded by legal aid whilst Mr Ng’s clients were privately funded.  In terms of timing, the Notice of Appeal in CACV 8/2019 and the one in CACV 10/2019 were dated 10 January 2019 whilst the notices in CACV 87/2019 and CACV 88/2019 were issued on 21 February 2019.  There is no evidence before us to suggest that there had been co-ordination between the Applicants at the time when they commenced the proceedings or the bringing of the appeals.  We also have no information as to the rationale behind legal aid being granted for two sets of proceedings challenging the same subject matter.   

18.  The judge did not find the multiplicity of proceedings to be abusive in the circumstances of these cases.  It is fair to say that though there were some common grounds, each team of lawyers had run some discrete points as well.  In terms of the appeals, the multiple appeals have not substantially increased the costs.  Whilst there are points which we rejected summarily, we do not find this to be a sufficient reason for ordering costs against the Applicants if we were otherwise satisfied that the PIL exception should apply.

19.  Having said that, our decision in the present appeals should not be construed as our endorsement of multiple proceedings in respect of the same subject matter.  Whilst there are cases where more than one set of proceedings may be justified, it is a matter of case management for the judge in charge of the Constitutional and Administrative Law List and the presiding judge hearing the cases to decide whether such justification exists in the particular circumstances of these cases.  In this connection, it is pertinent to note the approach of the courts in dealing with application for intervention in existing proceedings by third parties as discussed in QT v Director of Immigration [2018] HKCFA 17, in particular at [16] to [18]:

“ 16.     This is also reflected in De Smith’s Judicial Review (7^th Edition) at [2-068], where the suggested test for intervention is put in these terms:

‘The main criterion ought to be whether would-be interveners, th[r]ough their expertise, are likely to be able to assist the court in understanding either the legal issues in question or the factual basis of the claim and the consequences that may flow from the court’s judgment.’

17.     Similar considerations apply in this jurisdiction and in respect of appeals to this Court.  Leave to intervene will not be granted to allow a party merely to act as an additional supporting party for one or other side in the appeal.  Nor if leave to intervene has been granted, should the intervention take the form of simply repeating what one or other of the parties to the appeal has already said.  Further, it is important to distinguish between leave to file evidence and leave to file submissions.  If leave is granted for the latter but not the former, it is important that the distinction is observed.  Moreover, the timing of the application may be a relevant factor and if, for example, an intervention involves the filing of evidence, it may in some cases be appropriate for the application to have been made at an earlier stage of the proceedings.

18.     There is clearly a need, too, in this context for some degree of restraint.  As Sedley LJ observed in Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482 at [24]:

‘ … it needs to be remembered that litigation, even on issues of general importance, is not an open battleground. The court may well welcome help, such as it has had in this case, on law or, more occasionally, on fact from knowledgeable third parties. But there is no legal right to intervene and a limit to the amount of material the court can cope with from other quarters. We note with approval that in public interest litigation Treasury counsel today do not stand in the way of interventions unless they consider that there is good reason to do so. But potential interveners do need to be able to contribute something relevant that is not already before the court.’ ”

20.  What a third party cannot achieve by way of intervention should not be permitted to be achieved by commencing another set of proceedings for judicial review.  If multiple proceedings are not justified, the first instance court could exercise its case management power to stay the new proceedings pending the determination of the issue in the earlier or the more suitable set of proceedings for the ventilation of the relevant issue (as in 尹照華 v Director of Agriculture, Fisheries and Conservation HCMP 1085/2015, 19 November 2015) or give directions confining an applicant in one set of proceedings to specific issues which were not canvassed in the parallel proceedings (as in Leung Kwok Hung v Chief Executive in Council HCAL 2949/2019:see [2020] 1 HKLRD 1 at [10]).

21.  In the context of PIL assessment, when there was already one set of proceedings on foot raising similar issues, thus providing the platform for the adjudication of the same by the court, one has to examine whether there is any justification for additional sets of proceedings to be brought in order to seek the same guidance from the court.

22.  As we said, these considerations should have been raised and addressed by the first instance judge as a case management matter.  In the present appeals, since apparently no issue concerning four different sets of proceedings had been raised (as there is no respondent’s notice challenging the necessity for the same and the order for costs below), we are not going to take it upon ourselves to examine this question at this late stage in the context of our determination on costs.

23.  For the reasons given above, we are satisfied that in the circumstances of these appeals, the PIL criteria are met in all the appeals.  We will make an order that there be no order as to costs in all the appeals.