SHAM TSZ KIT AND ANOTHER v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 2670/2019

[2021] HKCFI 2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2670 OF 2019

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DECISION ON COSTS

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1.  The basic facts of this case were set out in the court’s judgment handed down on 24 March 2021 (“the Judgment”), and shall not be repeated here.  In this decision on costs, the court shall continue to use the expressions and abbreviations as defined in the Judgment.

2.  In the Judgment, of the 6 grounds of judicial review advanced by the Applicant:

(1)  The court refused to grant leave to apply for judicial review in respect of Ground 4, Ground 5 (in so far as it was contended that POO 17(2) and (3) imposed unjustifiable restrictions on the right to freedom of peaceful meeting), and Ground 6 (hereinafter collectively referred to as the “Other Grounds”), on the basis that they were not reasonably arguable and did not have a realistic prospect of success (§46).

(2)  The court also held that Grounds 1, 2 and 3 and Ground 5 (in so far as it was contended that the Dispersal by Tear Gas Decision imposed unjustifiable restrictions on the right to freedom of peaceful meeting) (hereinafter collectively referred to as the “Use of Force Grounds”) were reasonably arguable and had a realistic prospect of success.  However, the court considered that the determination of those grounds would require the resolution of substantial disputes of facts, which it was not possible to do on the basis of the existing affidavit evidence before the court.  Accordingly, the court gave leave to the Applicants to apply, if they wished, for an order that these proceedings should continue as if they had been begun by writ under Order 53, rule 9(5) of the Rules of the High Court within 14 days from the date of the judgment (§47).

At this juncture, I should mention that the principal focus of this case has always been on the lawful limits of the use of force by police officers in the execution of their operational duties.  The bulk of the parties’ arguments, as well as the evidence presented, at the rolled-up hearing concerned the Use of Force Grounds, with less time and emphasis being spent or placed on the Other Grounds.

3.  The time for the Applicants to make the application referred to in §2(2) above was subsequently extended at the Applicants’ request.  Eventually, on 17 June 2021, the Applicant confirmed in writing that they did not intend to make any application for an order that these proceedings should continue as if they had been begun by Writ under Order 53, rule 9(5) of the Rules of the High Court.  Consequently, the Use of Force Grounds were dismissed.

4.  This decision concerns the issue of costs only, the parties having filed and served written submissions on costs on 5 July 2021 pursuant to the court’s directions.  Put simply, the Putative Respondents contend that there is no reason to depart from the general rule that costs should follow the event and thus the court should order the Applicants to pay the costs of Putative Respondents, to be taxed if not agreed, with certificate for three counsel.  On the other hand, the Applicants contend that there should be no order as to costs of these proceedings, relying on the public interest litigation (“PIL”) exception.

5.  The general rule that costs should follow the event is applicable in public law proceedings.  However, this is only the starting point for consideration.  There are two important exceptions to this rule in public law proceedings: (i) the guidelines given by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 in relation to leave applications, and (ii) the PIL exception.

6.  The guiding criteria for the application of the PIL exception are well established.  They were summarised by Lam J (as he then was) in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428, at §29:

“(a) 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 whole to warrant the costs of the litigation be borne by the public purse as costs incidental to good public administration;

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

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

7.  These criteria have recently been applied by the Court of Appeal in Leung Kwok Hung v Secretary for Justice and Another [2020] HKCA 837 (the anti-mask case), and Kwok Cheuk Kin and Another v Director of Lands and Others [2021] HKCA 915 (the Small House Policy case).  It is important to emphasise, however, that in all cases, the question of costs remains a matter of discretion to be exercised by the court having regard to all relevant circumstances of the case.  The fact that the three criteria for the application of PIL exception are satisfied does not necessarily mean that the court will make no order of costs against an unsuccessful applicant in an application for judicial review.  Conversely, the fact that the three criteria are not fully satisfied does not automatically mean that an adverse costs order will be made against an unsuccessful applicant.

8.  In the present case, I consider the three criteria for the application of the PIL exception are satisfied:

(1)  All 6 grounds of judicial review raise issues of general or public importance.  The Applicants properly brought this application to seek guidance from the court on those issues, and the litigation was for the benefit of the community as a whole.  The application was properly brought in that the relevant complaints could not, in my view, be adequately ventilated otherwise than in legal proceedings[1], and was for the benefit of the community as a whole in that the issues raised by the application were of significance and interest to a large group of the general public[2]. On the materials before the court, the Use of Force Grounds were also reasonably arguable and had a realistic prospect of success.

(2)  The present application has, I hope, contributed to some further understanding of the law in Hong Kong in relation to various aspects of the use of force, particularly the deployment of tear gas by police officers in the course of carrying out lawful operational duties, and the constitutionality of POO 17(2) and (3).

(3)  Although the Applicants were personally involved in the public meeting on 12 June 2019 in that the 1^st Applicant was the convenor of CHRF (the organiser of the public meeting), and the 2^nd Applicant was a participant at the meeting, they made it clear that they did not seek any damages for what they considered to be excessive force used by police officers.  I am satisfied that they brought the present application in order to clarify the proper lawful limits of the use of force by police officers in public meetings/assemblies for the benefit of the public (or a section of the public), and not for any private gain.

9.  I do not consider that one can read too much into the Applicants’ decision not to continue to pursue the Use of Force Grounds, having regard to the substantial changes of circumstances in Hong Kong between the time of the commencement of this application and now (including the fact that the Applicant has, I am told, been remanded in custody in relation to some unrelated matter(s)).  Neither do I attach any or any significant weight on this fact when considering the question of costs.  The consequence of their decision not to continue to pursue the Use of Force Grounds means that there is no determination by the court on whether, on the facts, the Police used excessive force on 12 June 2019.  It does not affect the court’s conclusion on the relevant principles concerning the use of force by police officers in carrying out their lawful operational duties as summarised in §22 of the Judgment.

10.  In respect of the Other Grounds, it is also relevant to bear in mind that in Leung Kwok Hung (2014) 17 HKCFAR 841, at §17(2), the Court of Final Appeal held that the general rule is that an unsuccessful applicant in a leave application will not be ordered to pay the costs of a putative respondent unless there are special or unusual circumstances which justify such an award.  The fact that the putative respondent has attended an oral leave hearing at the court’s invitation, or the court has directed a rolled-up hearing, are relevant, but by no means conclusive, considerations in the court’s ultimate exercise of discretion as to whether to order costs against an unsuccessful applicant.  I should also mention that the Putative Respondents have provided substantial assistance to the court in relation to the Other Grounds, as well as the Use of Force Grounds, in the present case.

11.  There are no other relevant or significant factor against the application of the PIL exception in the present case:

(1)  The present application as a whole is not one without merits or without any factual foundation, and not one which can be described as improper, vexatious or an abuse of process.

(2)  The application also cannot be said to have “wasted the court’s time”.

(3)  The Applicants had sufficient interest to bring the application, and were not guilty of delay in making the application.

(4)  The Applicants’ conduct of the proceedings was unexceptional.

12.  Overall, I consider this to be a proper case to make no order as to the costs of the application for judicial review.  I so order.

[1] As explained by the Court of Appeal in Kwok Cheuk Kin v Director of Lands [2021] HKCA 815, at §17.

[2] As explained by the Court of Appeal in Leung Kwok Hung v Secretary for Justice [2020] HKCA 837, at §21.