CHAN MEI YIU, PADDY AND ANOTHER v. SECRETARY FOR JUSTICE AND OTHERS

HCAL 16/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 16 OF 2007

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D E C I S I O N

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1.  On 9 December 2010, I handed down a decision in this matter on the question of costs. Subsequently, I learned, for the reasons outlined by me to the parties in Chambers on 14 December 2010, that reply submissions and authorities put in by counsel for the Respondents had not come to my attention properly, and had not been considered by me in the course of reaching my decision. I invited the parties to make written submissions to me on any steps that should be taken.

2.  The parties are agreed, correctly, that until such time as the order as to costs is perfected the court has power to reopen and vary the decision: see HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637.  This is not an appropriate case for the slip rule, under which the court does not change its order but merely ensures that the order accurately reflects what the court had originally intended when making the order: see Chow Tai Fook Jewellery Co Ltd, HCMP 6992/1998, unreported, 12 October 2000.  It is common ground between the parties that, although the court has power to reopen in this case, strong reasons, synonymous with an exceptional case, must be shown before the decision is reopened: see Taylor v Lawrence [2003] QB 528, CA.

3.  The argument for the Plaintiffs is that two points of law were advanced by the Respondents in the reply submissions; first that the Elgindata[1] principles had been followed by the Hong Kong courts post CJR, and second, that the present case, which concerned search warrants, did not meet the criteria set out by Lam J in Chu Hoi Dick v Secretary to Home Affairs (No 2) [2007] HKC 428.  That is a correct reflection of the submissions.  The Plaintiffs then say that none of the points made in the reply submissions would have affected the decision, which is accordingly not plainly wrong.

4.  I accept that submission.

5.  I have reviewed the authorities submitted by the Respondents and am satisfied that nothing contained in the submissions or the authorities would have affected my statement of the legal principles to be applied, and set out in paragraphs 5-7 of the decision.  In his original submissions, Mr. Grossman for the Respondents, relied upon Elgindata principles and argued that they had been applied in Hong Kong.  I found however that following CJR in Hong Kong those principles must be viewed in a different light.

6.  As to the relevance of Elgindata principles, I have considered the authorities contained in the reply, and note the following comments which were made by the Plaintiffs, which I accept:

(i)     Regent National Enterprises v Goldlion Properties FACV 10/2008: the unsuccessful party relied upon Elgindata principles and succeeded in obtaining a reduced costs order, as they were here; none of the post CPR English authorities relied on by the Plaintiffs in this matter, and upon which I distinguished Elgindata, were put before the Court;

(ii)    Chinachem Charitable Foundation Ltd v Chan Chun Chuen HCAP 8/2007: again the unsuccessful party relied upon Elgindata principles, and again the successful party’s costs were reduced, as they were here;

(iii)   Wang Din Shin v Nina Kung CACV 67/2003; by applying Elgindata principles, the successful party’s costs were reduced, as they were here;

(iv)   Chan Lai Ying & Ors v Lee Lim & Ors HCA 1413/2005; recognising the general principle that cost should follow the event, and with none of the post English CPR authorities relied upon by the Applicants before me, being cited, the court deprived a successful party of one third of her costs;

(v)    Heibei Enterprises Ltd v Livisari & Co FACV 23 & 25/2007; this decision pre-dated CJR, and, it being common ground between the parties that Elgindata principles were applicable, the matter was not subject to any argument;

(vi)   La Chemise Lacoste SA v Crocodile Garments Ltd [2004] 4 HKC 317 and Goldenwick Ltd v Standard Chartered Bank (Hong Kong) Ltd [2008] 3 HKLRD 266; these are both pre Hong Kong CJR, again with none of the post English CPR authorities being cited;

(vii)  Seepersad v Persad [2004] UKPC 19; this decision is simply inapplicable, relating to the consequences of costs if issues of damages can be separated.

7.  The second point raised in the reply is the issue of costs in judicial review cases involving public interest.  At paragraph 28 of the decision I reviewed the nature of these proceedings, and in particular at paragraph 28(i)-(iii) considered factors relevant to the public interest issue.  The authorities referred to in the submissions, with the exception of Philip KH Wong, Kennedy YH Wong & Co v Commissioner of ICAC (No 2) [2009] 5 HKLRD 379, were all decided before the introduction of the new factors in Order 62 rule 5(1) under CJR.  The decision in Philip KH Wong did not raise the issue of a public interest challenge.

8.  Consequently, I have reached the conclusion that even if I had taken into account the Respondents reply submissions and the authorities cited in support of those submissions, it would have no impact on the decision that I ultimately reached.

9.  For these reasons, I am satisfied that this is not an appropriate case in which I should recall and vary the decision made on 9 December 2010.

10.  There will be no order for costs in respect of the hearing on 14 December 2010, or in respect of the written submissions made subsequent to that hearing.

Mr G J X McCoy, SC leading Mr Steven Kwan, instructed by Messrs Haldanes, for the Applicants, in HCAL 16 – 19/2007 and the Plaintiffs, in HCMP 1175/2007

Mr Wayne Walsh, Deputy Law Officer (Mutual Legal Asst) of the Department of Justice, for the 1^st – 3^rd Respondents, in HCAL 16 – 19/2007 and the Defendant, in HCMP 1175/2007