TO KAN CHI AND OTHERS v. SECRETARY FOR JUSTICE

FACV No. 8/2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NO. 32 OF 1999)

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D E C I S I O N

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Mr Justice Bokhary (sitting as a single judge to continue to hear an appeal first called on while he was a Permanent Judge) :

1.  By a judgment handed down on 22 December 2000 and reported as Secretary for Justice v. To Kan Chi & Others (2000) 3 HKCFAR 481, this Court, by which I mean the Court of Final Appeal, dismissed the Secretary for Justice’s appeal.  The costs awarded to the Tso and the Clan included their costs of the appeal to the Court of Appeal, such costs to be taxed on a party and party basis if not agreed.  Those costs have been taxed by the Registrar of this Court.  And the appeal heard by me today is an appeal by the receiving parties from his decision on that taxation.  This appeal was first called on at a time when I was a Permanent Judge, but had to be adjourned for fresh evidence to be filed.  It was later brought up for procedural directions, still while I was a Permanent Judge.  On that occasion I adjourned it part-heard.  And that has enabled me to continue with the appeal even after I had ceased to be a Permanent Judge.

2.  In the order in which I propose to deal with them, the first criticism which the receiving parties level against the Registrar’s decision is that it was arrived at, they say, on an incorrect test for recovery, namely one of what was necessary and proper rather than on the correct test of what was necessary or proper.

3.  From what has been shown to me, it does appear that the Registrar had made a number of references to what was “necessary and proper”.  He certainly said of the costs of engaging the services of a London leader that they were “necessary and proper”.  But he said that in the course of allowing those costs.

4.  All things considered, I am not persuaded that the Registrar ultimately applied a test of what was necessary and proper rather than one of what was necessary or proper.  Even assuming that he was under a misapprehension as to the correct test at one stage, he did eventually use the expression “necessary or proper”, and it seems to me that he ultimately decided on that footing.

5.  In saying that, I have not forgotten that the Registrar did dispose of some items at the stage when he was using the expression “necessary and proper” and before he began to use the expression “necessary or proper”.  But I do not think that he would have failed to revisit those items if his disposal of them had turned on the difference between the two formulae.  All things considered, I do not think that there has emerged a sufficient basis for treating the Registrar as having disallowed costs and then maintained such disallowance on the wrong test for recovery.

6.  The next complaint is against the Registrar’s disallowance of the costs of junior counsel in an application heard by a single judge of the Court of Appeal.  Two counsel appeared for the receiving parties, but no certificate for two counsel was obtained.  The Registrar thought that such a certificate was necessary.  But it is not made out that he would have allowed the costs of junior counsel if he did not think that a certificate for two counsel was necessary.  In all the circumstances, I do not consider it appropriate to reverse this disallowance even assuming that no certificate for two counsel was necessary.

7.  Next, there is the receiving parties’ complaint against the Registrar’s refusal to allow the costs of a third leader in the Court of Appeal.  In so far as there is a principle involved in this complaint, it is against the receiving parties.  Any party who wants to recover the costs of more than two counsel in an appeal to the Court of Final Appeal, I might just mention, should seek an appropriate certificate.  Even leaving that aside, for me to accede to this complaint would be, in my view, to show less than the degree of respect due from me to the Registrar’s discretion. 

8.  Penultimately, the receiving parties complain against a 40% global deduction which the Registrar made on the ground of undue delay.  As to this, the Registrar said:

“For the taxed costs on the work done in the CACV proceedings up to and before the costs of taxation, that is, up to item 618 of page 112 of the bill, a 40 per cent deduction on the net taxed costs, after deducting the interim payment of 2.8 million, should be imposed.”

Order 62 rule 22(3), under which he acted, provided that:

“On any order in accordance with paragraph (1) and on the taxation of a bill of costs, whether or not an order has been made under paragraph (1), the taxing master, if he is satisfied that there has been undue delay in the filing of the bill of costs or in the service of the notice of appointment to tax, may make such order as he shall consider appropriate as to costs of any application or of any order or as to the costs of the taxation and may disallow any item contained in the bill of costs.”

That, the receiving parties say, does not permit a global deduction for delay.  The cases show that taxing officers have been making such deductions, albeit without discussing the scope of the relevant rule.  Two of these cases are cited in note 62/22/3 of Hong Kong Civil Procedure 2009 where the power under Order 62 rule 22(3) is described as a “general power … to make any appropriate orders”. 

9.  Subject to the question of whether he had power to order a global deduction, I see no good reason to reverse the Registrar’s finding that there had been in this case such delay as warranted the 40% deduction which he made.  Did he have power to order a global deduction?  The rule under which he acted empowered him to disallow any item for delay.  That meant that he could wholly disallow any item.  And the rule does not limit the items that he could wholly disallow.  The object of the rule, or any least one of its objects, is to encourage persons to get on with taxations of costs. Does a global deduction of any given percentage really mean more than a deduction of every item by that percentage?  I think not.  And I do not see why such an approach is to be regarded as something falling outside the rule. Provided that a common thread runs through all the items and the undue delay pertains to them as a whole, I see no reason why the rule cannot be acted upon by way of such an approach.  And it does appear that a common thread runs through all of the items here and that the undue delay pertains to them as a whole.

10.  So this penultimate complaint by the receiving parties fails.

11.  Finally the receiving parties complain against the Registrar having dealt with the costs of the preliminary issues separately from the general costs of the taxation and to make the order as to costs which he made.  In my view, the Registrar was acting within his discretion to deal with costs as he did.

12.  In the result and with an expression of my indebtedness to counsel on both sides, I dismiss this appeal.

[Argument on costs]

13.  The appeal is dismissed with costs in favour of the Secretary for Justice with a certificate for two counsel.