TONG YING KIT v. HKSAR

HCAL 1601/2020

[2020] HKCFI 2688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1601 OF 2020

________________________

________________________

________________________

REASONS FOR DECISION

________________________

These are the reasons for the decision of the Court.

INTRODUCTION

1.  By a judgment handed down on 21 August 2020 (“the Judgment”), this court dismissed the Applicant’s application for a writ of habeas corpus made on 3 August 2020.  At §78 of the Judgment, the court made an order nisi (“the Order Nisi”) that the Applicant was to pay the Respondent’s costs, to be taxed if not agreed, with certificate for two counsel.

2.  Consequent upon the Order Nisi, two summonses were issued by the parties:

(1)     the Respondent’s summons dated 27 August 2020 seeking to vary the Order Nisi such that the Applicant should pay the Respondent’s costs on an indemnity basis; and

(2)     the Applicant’s summons dated 31 August 2020 seeking to vary the Order Nisi such that there should be no order as to costs.

3.  At the conclusion of the hearing on 19 October 2020, we dismissed the two summonses and made absolute the Order Nisi, with reasons for the decision to be given later, which we now do.

APPLICANT’S APPLICATION

(i)     The court’s jurisdiction to award costs

4.  We shall first deal with the Applicant’s summons.  Ms Linda Wong[1] argues that the court has no jurisdiction to make an award of costs against the Applicant because the matter underlying the habeas corpus application is criminal in nature.  She relies upon the judgment of the Full Court in Re Sun Ah Wan (1910) 5 HKLR 72 for this proposition.  That case concerned the costs of a successful applicant in an application for a writ of habeas corpus arising out of extradition proceedings.  The Full Court accepted that the application was “a criminal cause or matter” and, referring to various English authorities, held that the Hong Kong courts had no jurisdiction to make an award of costs in favour of the successful prisoner.  In particular, the Full Court held that s 359 of the Code of Civil Procedure (Ordinance, 3/01), then in force, which provided that -

“The costs of every action and of each particular proceeding therein, and of every proceeding before the Court - including the administration of an estate or trust shall be in the discretion of the Court, and the Court shall have full power to award and apportion costs in any manner it may deem proper”,

only applied to civil matters and did not regulate the practice in criminal proceedings.

5.  For the purpose of this decision, we are prepared to assume (without deciding) in the Applicant’s favour that the application for a writ of habeas corpus in this case should be regarded as a criminal cause of matter[2]. However, the court’s jurisdiction to make an award of costs in habeas corpus proceedings arising out of extradition proceedings was affirmed by the English Divisional Court in R v Chief Metropolitan Magistrate, ex p Osman [1988] 3 All ER 173.  The relevant statutory provision under consideration by the English Divisional Court, namely, s 51 of the Supreme Court Act 1981, stated as follows:

“(1) Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court … shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in subsection (1) shall alter the practice in any criminal cause or matter, or in bankruptcy.”

6.  The former English RSC Ord 62, r 2(1) provided:

“In addition to the civil proceedings to which this Order applies by virtue of Order 1, rule 2(1) and (2), this Order applies to all criminal proceedings in the High Court and in the civil division of the Court of Appeal.”

7.  Pausing here, it may be noted that s 51 of the 1981 Act is materially the same as s 52A of the High Court Ordinance, Cap 4, which, so far as relevant, states as follows:

“(1) Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the Court of First Instance, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.

(3) Nothing in subsection (1) shall alter the practice in any criminal cause or matter, or in bankruptcy.”

8.  Also, Order 62, r 2(1) and (4) of the Rules of the High Court, Cap 4A, corresponding to the English provision referred to in §6 above, states:

“(1) This Order shall apply to all proceedings in the Court, except non-contentious or common form probate proceedings and proceedings in matters of prize.

(4) The powers and discretion of the Court as to costs under sections 52A and 52B of the Ordinance and under the enactments relating to the costs of criminal proceedings to which this Order applies shall be exercised subject to and in accordance with this Order.”

9.  As pointed out in the judgment of Lloyd LJ (with whom French J agreed) in ex p Osman (at 174h), on any view the proceedings in the Divisional Court were proceedings in the High Court within the meaning of s 51(1) of the 1981 Act, and the crucial question was, for the purpose of s 51(2), “what is the practice in habeas corpus application with regard to costs? Or rather, what was the practice when the 1981 Act was passed” (at 175c-d).  Lloyd LJ then considered various English authorities (including Re Naranjan Singh [1962] 1 QB 211; Union of India v Narang [1978] AC 247; and Government of Denmark v Nielsen [1984] AC 606), and came to the conclusion that there was “sufficient evidence to establish a practice of awarding costs in the Divisional Court” (at 175h).  It was held, accordingly, that the Divisional Court had jurisdiction to award costs in that case (at 177a).

10.  In Hong Kong, s 9(3) of the Criminal Procedure Ordinance, Cap 221, provides that:

“Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprision of treason) shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England.”[3]

11.  Accordingly, the aforesaid practice in England accepted by Lloyd LJ as sufficiently proved by reference to authorities prior to 1984 (in particular the judgment of Lord Parker CJ in Re Naranjan Singh in 1961 and that of Lord Widgery CJ in Narang in 1976) should be regarded as forming part of the practice of the Hong Kong courts by the time when s 52A of the Supreme Court Ordinance (being the predecessor to the current High Court Ordinance) was enacted in 1987.

12.  In The Queen v Mak Yuet-hang [1990] 1 HKLR 121, the question was raised as to whether the Court of Appeal in Hong Kong had jurisdiction to make an award of costs in favour of a defendant/appellant who succeeded in her appeal against an order of the District Court refusing to award costs to her upon her acquittal.  The Court of Appeal held that it had no inherent jurisdiction to award costs in the light of s 52A(1) of the Supreme Court Ordinance.  Ex p Osman was referred to and distinguished by the Court of Appeal, but nothing that was said by the Court of Appeal cast any doubt on the correctness of the judgment of the Divisional Court.  In respect of that judgment, Yang CJ stated, at 124A, that “[t]here was however an established practice of awarding costs in habeas corpus applications … Here we are confronted with an entirely different situation, in the Court of Appeal and not the High Court.  Again s.52A(1) prevails.”

13.  In our view, whatever might have been the practice in England or Hong Kong in 1910 when Re Sun Ah Wan was decided, by the time when s 52A of the Supreme Court Ordinance was enacted in 1987, there was no longer any practice in Hong Kong of the courts not awarding costs in a habeas corpus application arising out of a criminal cause or matter.

14.  Recent cases decided by the Court of First Instance and the Court of Appeal support the view that the Hong Kong courts have exercised the power to award costs in habeas corpus applications arising out of criminal proceedings, see for example:

(1)     Xie Jing Feng v Superintendent of Lai Chi Kok Reception Centre and Government of the Republic of India, HCAL 223/2015 (13 Feb 2017), where Au J (as he then was) dismissed an application for a writ of habeas corpus arising out of extradition proceedings and made a costs order nisi against the applicant;

(2)     Xie Jing Feng [2020] HKCA 321, where the Court of Appeal dismissed Mr Xie’s application for an extension of time to appeal Au J’s order with costs, which were summarily assessed on an indemnity basis; and

(3)     Xie Jing Feng [2020] HKCA 708, where the Court of Appeal dismissed Mr Xie’s application for leave to appeal to the Court of Final Appeal with costs, which were also summarily assessed.

15.  Mr Jenkin Suen, SC has drawn our attention to other cases where the Hong Kong courts exercised the jurisdiction to award costs in habeas corpus proceedings arising from extradition proceedings, including (i) See Cherk Ching v Superintendent of Lai Chi Kok Reception Centre [2005] 4 HKLRD 105 (Hartmann J), (ii) Cheng Chui Ping v Superintendent of Tai Lam Centre for Women [2000] 3 HKC 777 (Stock J), (iii) Chong Bing Keung Peter v The Government of the United States of America, HCAL 127/1999, 26 October 1999 (Stock J), and (iv) Chong Bing Keung v United States of America (No 2) [2000] 2 HKC 137 (CA).

16.  It is right to point out that there was, apparently, no argument on the question of the court’s jurisdiction to award costs in the above cases, but that sort of consideration was not considered to be significant by Lloyd LJ for the purpose of determining what was the relevant practice of the English Court (see ex p Osman, ante, at 175d-e).

17.  We note that the section heading of s 52A of the High Court Ordinance states: “Costs in Court of First Instance and Court of Appeal in its civil jurisdiction”.  However, s 52A(1) itself seems to draw a distinction between the costs of and incidental to all proceedings “in the Court of Appeal in its civil jurisdiction” on the one hand and “in the Court of First Instance” on the other.  Ms Wong accepts that the reference to “civil jurisdiction” in this section only relates to the jurisdiction of, or exercise of jurisdiction by, the Court of Appeal, but not the Court of First Instance.  In any event, s 18(3) of the Interpretation and General Clauses Ordinance, Cap 1, provides that: “A marginal note or section heading to any provision of any Ordinance shall not have any legislative effect and shall not in any way vary, limit or extend the interpretation of any Ordinance.”

18.  In all, we are of the view that the court does have jurisdiction to make an award of costs in the present case.

(ii)     Exercise of the court’s discretion on costs

19.  In relation to the court’s exercise of discretion on costs, Ms Wong argues that it should not be the general practice that costs should be awarded against an unsuccessful applicant, because a person should not be discouraged from testing the case for his detention by a habeas corpus application for fear of an adverse costs order, and he is entitled to take proceedings before a court for deprivation of his liberty under HKBOR 5(4) and ICCPR 9(4).  She relies on the fact that under Order 54, r 2(2) of the Rules of the High Court, an application for a writ of habeas corpus may be made ex parte.  She further argues that even if a costs order is made, the court should have regard to the financial means of the accused and satisfy itself that any costs order that is made is one which the accused is able to play.  This is so even if the defendant is legally aided because, it is said, s 18 of the Legal Aid Ordinance, Cap 91, sets a limit on the costs payable by him or her by reference to the contribution made.

20.  On the facts of this case, Ms Wong submits that no costs order should be made against the Applicant, primarily because of the importance of this habeas corpus application to the general public, in particular:

(1)     The application was the first one concerning detention relating to the National Security Law which triggered Article 42 and involved novel arguments over its interpretation.  The issues raised in the application are of general public importance.

(2)     The National Security Law is a national law applied locally by way of promulgation.  There had been no public consultation, publication of a bill, formal introduction by the Government, or legislative debates made known to the public prior to its enactment.  The lack of extrinsic materials made it difficult, if not impossible, for the National Security Law to be interpreted by the general public other than by adopting a literal approach.  The habeas corpus proceedings provided a much-needed opportunity for the law to be clarified by the court.

(3)     There is indisputably public and international controversy about the National Security Law.  By placing the above novel and important questions before the court for argument and deliberation, the proceedings provided a forum by which an understanding of the National Security Law might be clarified and the validity of the law might be judicially recognized.  This helped command the respect and confidence of the public in our legal system.

21.  Having regard to the nature of an application for habeas corpus, we accept as correct in principle that there should not be a general, or prima facie, rule to the effect that a costs order should be made against an unsuccessful applicant.  In ex p Osman, Lloyd LJ remarked, at 175h, that: “Of course it is not in every case that costs will be awarded.  It may be exceptional to do so”.  The question of costs in the context of a habeas corpus application to test the legality of a detention ought, in our view, to be approached on a more liberal basis.  As in any case concerning costs, the court has a discretion, to be exercised judicially, on whether a costs order should be made depending on the facts and circumstances of the case in question.

22.  As to the point that an application for a writ of habeas corpus could be made ex parte, having regard to the issues raised by the Applicant, it could not sensibly have been thought that the present application would be disposed of on an ex parte basis.  Anyhow, as pointed out by Mr Suen, the Applicant served the papers on the Department of Justice on 3 August 2020, and urged the department to handle the matters immediately so that the Respondent would be represented at the hearing of the application.

23.  In so far as the Applicant’s ability to pay costs is concerned, he has been on legal aid since 19 August 2020.  The costs of the Respondent incurred on or after that date which the Applicant may be ordered to pay will therefore be paid by the Director of Legal Aid on his behalf.  As for the contribution which he may be required to make under the Legal Aid Ordinance, the legal aid certificate states that the maximum contribution payable by the Applicant is “Nil”.  The substantive hearing of the habeas corpus application took place on 20 August 2020.  Accordingly, the bulk of the Applicant’s potential costs liability in relation to the habeas corpus application would be covered by legal aid.  As for the costs incurred before 19 August 2020, the Applicant has not produced any evidence regarding his means, or whether he is able to raise funds from other sources.  Overall, we are not prepared to attach much weight to the question of the Applicant’s ability to pay costs.

24.  The fact that the application raises issues of general public importance is a factor which we can, and should, properly take into account in the exercise of our discretion on costs.

25.  On the other hand, as submitted by Mr Suen, the Applicant had been forewarned by the Respondent’s submissions dated 5 August 2020 that he should have proceeded with his challenge to the Chief Magistrate’s order refusing to grant him bail by way of a bail review instead of a habeas corpus application.  There was also a line of consistent authorities which made it clear that the Applicant had adopted a wrong legal procedure.  There was no good reason for him to persist with the habeas corpus application.  As pointed out in the Judgment, all the substantive points that he wished to raise could equally have been raised in a bail review before a High Court Judge.

26.  The outcome of the habeas corpus application remains a relevant consideration, although it is not conclusive.

27.  Lastly, it is clear that the present habeas corpus application does not meet the criteria for a “public interest litigation” as formulated by Lam J (as he then was) in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428, at §29, in that the Applicant has a private interest, or gain, in the outcome of the application.  In any event, as emphasised by Lam J at §30 of his judgment, the public interest element is only one of the factors that is relevant to the court’s exercise of discretion as to costs.

28.  Taking all relevant matters into consideration, we are of the view that the Applicant should bear the Respondent’s costs of resisting the habeas corpus application.

RESPONDENT’S APPLICATION

29.  In relation to the Respondent’s summons, it is well-established that the costs of a successful party are normally taxed on the party-and-party basis.  The court has a discretion to order costs to be taxed on some different bases, including the indemnity basis.  There are no exhaustive categories of cases which would merit an order for indemnity costs. Examples where such order was made include cases where the relevant application can be regarded as constituting an “abuse of the process of the court”, or was “scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner” (see Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327, at 1334E-F).

30.  Mr Suen argues that the Respondent should be entitled to an order for indemnity costs in the present case, because:

(1)     the habeas corpus application is a collateral challenge of criminal proceedings and amounts to an abuse of process;

(2)     the Applicant could, and should, have withdrawn, but chose to persist with, the habeas corpus application despite having been forewarned by (i) the Respondent’s submissions dated 5 August 2020 that the habeas corpus application is an abuse of process, and (ii) the court’s directions on 18 August 2020 that the said application would be heard and determined first “in view of the issue having been raised that the habeas corpus application is a collateral challenge of criminal proceedings and amounts to an abuse of process”; and

(3)     the Respondent has had resounding success in the habeas corpus application.

31.  In the Judgment, we accepted the Respondent’s argument that the habeas corpus application is a collateral challenge of criminal proceedings and considered that the Applicant ought to have proceeded by way of a bail review to challenge the Chief Magistrate’s order refusing to grant him bail pending trial.  We also considered and dismissed the substantive arguments raised by Mr Philip Dykes, SC on behalf of the Applicant concerning various provisions of the National Security Law.

32.  These having been said, we bear in mind that this was the first case which required consideration by the High Court of the constitutionality of various provisions of the new National Security Law, which is obviously a piece of legislation of great constitutional, general and public importance.  The substantive issues raised are novel, and relevant not only to the Applicant himself.  The arguments raised on behalf of the Applicant are not so devoid of merits that pursuing them should be regarded as unreasonable conduct in itself.  Although this factor, ie the general public importance of the issues raised in the application, is not sufficient to deny the Respondent of its costs, we consider it to be a significant factor against an order for indemnity costs.

33.  In all the circumstances, we are not minded to exercise our discretion to make such order.

DISPOSITION

34.  The two summonses of the Applicant and Respondent respectively are dismissed.  The Order Nisi is made absolute. There shall be no order as to the costs of the two applications, including the costs of the hearing on 19 October 2020.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

[1] The Applicant’s skeleton submissions and reply submissions were prepared by Mr Philip Dykes, SC and Ms Wong.

[2] This point is disputed by the Respondent (see §7 of Mr Suen’s Reply Submissions on Costs dated 14 October 2020).

[3] We have been informed by Mr Suen that this provision, or a similar provision, was already in existence in our statute book in 1933.