SHAM CHUNG HEI v. CHUM YAU FONG, DAVID, A REVISING OFFICER AND ANOTHER

HCAL 2367/2023

[2025] HKCFI 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2367 OF 2023

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AND

HCAL 2368/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2368 OF 2023

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(Dealt with together)

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COSTS DECISION

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A. Introduction

1.  These proceedings were commenced by Forms 86 dated 27 December 2023, which requested an oral hearing.

2.  At the request of the Applicant, the hearing of the matter was adjourned on several occasions, albeit that the last requested adjournment was refused by the Court.

3.  The hearing was therefore to take place on 6 November 2024. However, by letter dated 30 October 2024, the Applicant sought to withdraw his applications for leave to apply for judicial review.

4.  On 1 November 2024, I granted leave to withdraw, and directed the costs consequences to be dealt with on paper.

5.  Paper submissions have been filed by the parties, and this is my Costs Decision.

6.  The 2^nd Putative Respondent and the 1^st and 2^nd Putative Interested Parties seek costs against the Applicant in so far as it concerns the first declaration sought in the Form 86 – namely that, for the purposes of the Rural Representative Election Ordinance Cap 576 (“RREO”), an “indigenous inhabitant” does not include an “indigenous fisherman” (“1^s Declaration”). They also seek summary assessment in a sum totalling $134,780.

7.  The Applicant opposes that request, and asks that there be no order as to costs, or alternatively a significantly lower sum of costs payable on any summary assessment.

8.  In broad terms, the 2^nd Putative Respondent and the 1^st and 2^nd Putative Interested Parties submit that:

(1)  Upon the discontinuance or withdrawal of proceedings, the discontinuing party would generally be ordered to pay costs, and there is nothing in the present case to suggest a departure from this principle.

(2)  The 1^st Declaration sought was plainly without merit because (a) the term “indigenous inhabitant” under section 2 of the RREO is clearly defined, and can in no way be interpreted as excluding “indigenous fisherman” or “locally-based fishermen” based on the plain meaning of the text, and (b) the same conclusion would be reached if one were to look at the context and purpose of the legislation.

(3)  The Applicant was legally represented throughout the proceedings, where the two Forms 86 were drafted/settled by two Counsel, and the reply to the initial response was drafted/settled by one Counsel. Therefore, the Applicant must have been alive to the potential complications of his suggested interpretation, and of the 1^st Declaration.

(4)  The Applicant has throughout failed to put forward any explanation, reasons or to support his suggested interpretation of the term “indigenous inhabitants”.

(5)  The Applicant has not prosecuted his case with alacrity, and saw fit to withdraw the application for leave to apply for judicial review at the 11^th hour.

(6)  Considerable time and costs have been wasted in considering and advising, and in preparing materials for the hearing fixed.

9.  In broad terms, the Applicant submits that:

(1)  The Applicant’s position against the eligibility of the nine members of the Wong and Law clans to register as indigenous inhabitant electors has not changed, though he is not against the boat people or fishermen on the island or in Yung Shue Wan Village.

(2)  Withdrawal of these proceedings does not mean that the Applicant is dropping his challenge to the eligibility of members of the Wong and Law clans to register as electors.

(3)  The distinction between definitions of “indigenous inhabitants” and “non-indigenous inhabitants” must be clear and cannot be confused.

(4)  As a responsible Indigenous Inhabitant Representative (“IIR”), it was the Applicant’s duty to oppose any person suspected of being ineligible to be registered as an indigenous inhabitant elector of the village.

(5)  As he had already been elected as IIR, the Applicant had no personal interest in the outcome of the judicial reviews, which were motivated to safeguard the rights and interests of the indigenous inhabitants of the village.

(6)  The withdrawal of the judicial review leave applications was due to – and only forced by – lack of personal financial means and the denial of legal aid, and the inability to act without legal representation.

(7)  The Applicant had sought legal aid, and had appealed to the High Court from the Director of Legal Aid’s refusal decision, but the appeal was unsuccessful on 27 October 2024.

(8)  The Applicant withdrew the proceedings as soon as it was clear that legal aid would not be granted. By this time, the judicial review proceedings were only at the preliminary stage of applications for leave.

(9)  If costs are recovered from him, the Applicant will be forced to give up his determination to seek justice in court in future, and may have a negative impact on other representatives in the New Territories who may want to seek judicial decisions on similar issues of eligibility requirements for electors.

(10)  The Applicant is a restaurant chef, and cannot afford additional expenses, so that full recovery of the sum claimed would cause huge financial burden to him and his family.

(11)  The Court is best able to consider whether the sums claimed are fair and reasonable, though some expenses appear unnecessary.

10.  There can be no dispute that general principles as to costs in civil litigation apply equally to judicial review cases, where the general rule is that a plaintiff or applicant who chooses to discontinue proceedings can expect to pay the costs: see my own recent decision in Tang Pun San v Tang Kwok Shu [2024] HKCFI 359 at §12.

11.  But it is also correct that the Court has a wide discretion when dealing with matters of costs, and the discretion should be exercised judicially to seek to achieve justice in the particular circumstances of the case.

12.  Where a case is resolved by some form of compromise, it may sometimes be appropriate and sensible to look at the underlying claims and enquire whether it is tolerably clear who would have won if the matter had not been compromised. If, upon consideration, it is tolerably clear that one party might have won (and so can be said to have done better out of the compromise), that may support that party receiving his costs.

13.  After careful consideration, I can see no sufficient reason in this case to depart from the general rule that an applicant who chooses to discontinue judicial review proceedings can expect to pay costs. I take into account the following:

(1)  ordinarily, applications for leave to apply for judicial review are made ex parte, and if continued solely on that basis will not occasion the incidence of costs incurred by a putative respondent or putative interested party;

(2)  however, where the participation of a putative respondent and/or putative interested party is invited by the Court, the costs incurred in responding to that invitation may give rise to an application against the applicant, if the application is ultimately unsuccessful;

(3)  that position is a fortiori, where the application is withdrawn in the face of the materials provided after those costs have been incurred;

(4)  I acknowledge the Applicant’s statement that he only withdrew the applications for leave to apply for judicial review once his application for legal aid was finally determined on appeal;

(5)  but where his own Forms 86, and his reply to the initial response, were drafted/settled with the assistance of Counsel, it cannot have been a surprise that legal costs would be incurred by the putative respondent and/or putative interested parties in responding;

(6)  I also acknowledged that the Applicant states that the proceedings were commenced not for his own personal benefit;

(7)  but I also note that the withdrawal of the applications is made on the express statement that the Applicant continues to believe that the applications have merit, and with indication that there might be future similar or related applications made by him;

(8)  it was open to the Applicant to continue with the proceedings, notwithstanding that he was unable either to afford private legal representation or obtain legal aid;

(9)  the merits of the applications do not look so strong so that it might be possible to identify that they would have succeeded had they continued to a determination by the Court;

(10)  the amount of costs payable, on a proper, proportionate and reasonable basis, would be a matter for assessment of the quantum of costs, not as to liability for payment of costs;

(11)  indeed, the impecuniosity of the party does not ordinarily provide good reason for not ordering costs if properly payable on the application of principles in the exercise of the relevant judicial discretion.

14.  Therefore, I order the Applicant to bear the costs of the 2^nd Putative Respondent and the 1^st and 2^nd Putative Interested Parties, to be summarily assessed.

15.  On the performance of that summary assessment, I note that the total sum is divided between costs claimed across the two separate sets of proceedings. The costs claimed are essentially duplicated, because there has been a 50% apportionment applied on costs shared for the two cases.

16.  I adopt the ordinary approach to summary assessment of costs, looking at the overall sums claimed as well as the constituent elements, and testing them by reference to reasonableness and proportionality in light of the apparent complexity of the questions in issue, the importance to the parties, and the volume of documents involved.

17.  It is the case advanced against the applications that the simple answer is found in the definition in the RREO. The overall figures claimed seem somewhat on the high side. Also, bearing in mind the seniority of the fee earners for some of the time spent, I think there may be some duplication across fee earners.

18.  In the exercise of my broad discretion, it seems to me that the appropriate figure of summary assessment in each of the two actions is $35,000, together totalling $70,000.