COOMBER, PETER JOHN v. WONG KING WAH

DCCJ 1956/2022 & DCCJ 3416/2022

[2023] HKDC 1673

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1956 OF 2022

------------------------

------------------------

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3416 OF 2022

------------------------

------------------------

------------------------

DECISION

------------------------

1.  Introduction

1.1  The Plaintiff had commenced four sets of related proceedings, namely DCCJ 1956/2022, DCCJ 3416/2022, HCAL 922/2022 and DCCJ 1129/2023.

1.2  On 22 May 2023, I acceded to the Defendants’ application to strike out the Plaintiff’s Statements of Claim and dismissed the actions in DCCJ 1956/2022 and DCCJ 3416/2022 (“Decision”)[1]. HCAL 922/2022 was dismissed by Coleman J on 17 May 2023[2].

1.3  At Decision §6.8, I made a costs order nisi that the Plaintiff do pay the Defendants’ costs on an indemnity basis to be summarily assessed.

1.4  On 2 June 2023, the Plaintiff filed a document titled “Application for Leave to Appeal against the Decision of HH Judge Jonathan Wong on 22 May 2023 – Dismissal and Costs (Statement of Objection)” (“Document”). At Document §§68 to 74, under the heading “Costs (“Statement of Objection”)”, various submissions were made but they pertained to HCAL 922/2022. Neither the Department of Justice (representing the Defendants) nor I understood those submissions to be related to an application to vary the costs order nisi made in the Decision.

1.5  As it turned out, at the hearing on 2 August 2023 (at which I dealt with DCCJ 1129/2023 and the Document formed part of the hearing bundles), the Plaintiff confirmed that he relied on those submissions to vary the costs order nisi. Notwithstanding that the Plaintiff’s application for variation of the costs order nisi was not made by summons (as it should be)[3], Mr Hor (appearing for the Defendants in DCCJ 1956/2022, DCCJ 3416/2022 and DCCJ 1129/2023) fairly accepted that the matter should be dealt with substantively and directions were given for the matter to be dealt with on the papers.

2.  The Plaintiff’s submissions

2.1  The Plaintiff submits that the costs order nisi should be varied to no order as to costs. The argument advanced by the Plaintiff is that DCCJ 1956/2022 and DCCJ 3416/2022 are “public interest litigation”, citing Leung Kwok Hung v The President of the Legislative Council of the HKSAR [2014] 17 HKCFAR 841.

2.2  There are, in my view, a number of insurmountable obstacles in the Plaintiff’s argument.

2.3  First, Leung Kwok Hung is a case where the Court of Final Appeal laid down the relevant principles to be applied in costs of opposing parties in unsuccessful applications for leave to apply for judicial review: Leung Kwok Hung §17. The present actions are not applications for leave to apply for judicial review.

2.4  Secondly, in the context of applications for leave to apply for judicial review, the consideration of public interest litigation comes into play primarily in an intermediate appeal: Leung Kwok Hung §17(10). The Court of Appeal stated therein:

“Notwithstanding the applicability of the normal costs rule, the public interest litigation factor recognised in Chu Hoi Dick v Secretary for Home Affairs (No 2) may apply so that the Court of Appeal should not order the applicant to pay an opposing party’s costs. For that factor to apply, it will be necessary for the applicant to show that he brought proceedings to seek guidance on a point of general public importance for the benefit of the community as a whole and that he stood to obtain no personal private gain from the outcome. The applicant’s case must also have had a real prospect of success. Even then, the ultimate order of costs remains in the discretion of the Court of Appeal, which will also need to take into account other relevant factors such as the conduct of the parties.” (emphasis added)

2.5  At the Court of First Instance stage, Leung Kwok Hung §§17(3)-(5) state:

“[(3)] There is no definitive list of reasons that may justify an award of costs against an applicant and in favour of a putative respondent. As already indicated, the discretion as to costs is broad. All facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.

[(4)] Without limiting what the court will take into account, it will certainly be relevant to focus on the reason that has led the opposing party to attend at the hearing, whether that party’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application, always bearing in mind that the context is the end result that the court has refused to grant leave to apply for judicial review.

[(5)] By way of example of these particular considerations: if the putative respondent or putative interested party has attended at the invitation of the court, the reason why the court has considered that party’s presence necessary will be relevant; so too, if the opposing party’s presence at the hearing may have been necessary because of an application for interim relief; if an application was thoroughly ill-conceived or unmeritorious, this may be a weighty factor justifying an adverse costs order; similarly, if it was so frivolous or vexatious, or motivated for a tactical purpose indicating bad faith; where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing. These considerations may or may not justify a costs order in favour of a putative respondent and it is important to stress that the ultimate decision remains in the discretion of the judge.” (emphasis added)

2.6  Thus, even were the consideration of “public interest litigation” to apply (which it does not in my view despite submissions made to the contrary by the Plaintiff), it does not provide a complete or automatic justification for the Plaintiff’s contention that there should be no order as to costs in the present action. Merits remain a weighty consideration in the court’s exercise of its discretion. It is self-evident from the Decision, in acceding to the Defendants’ strike-out applications and making a costs order nisi for indemnity costs, that I took a very dim view on the merits of the Plaintiff’s claims.

2.7  Thirdly, I am unable to see how the Plaintiff, despite his submissions to the contrary, can demonstrate that he stands to obtain no personal private gain from the outcome, or that the present proceedings were brought to seek guidance on a point of general public importance for the benefit of the community as a whole.

3.  Conclusion

3.1  For the above reasons, I dismiss the Plaintiff’s application for variation of the costs order nisi. The Plaintiff shall loge and serve its Statement of Objection in respect of the Statement of Costs already lodged by the Defendants (dated 13 February 2023) within 7 days.

3.2  In my view, the Plaintiff’s present application is without merit. I make a costs order nisi that the Plaintiff is to pay to the Defendants the costs of the present application for variation on an indemnity basis. The Defendants have already lodged their Statement of Costs (dated 15 August 2023). Unless any application for variation of the costs order nisi is made within time (for avoidance of doubt by a summons), the Plaintiff shall lodge and serve its Statement of Objection within 7 days after the expiry of the 14-day period. Summary assessment of the Defendants’ costs will be conducted on paper (no matter whether any Statement of Objection is lodged by the Plaintiff within time) thereafter. The costs assessed shall be payable by the Plaintiff within 14 days after assessment.

4.  Postscript

4.1  I should put on record that at the hearing on 2 August 2023, I had already made clear to the Plaintiff that the Document, in so far as it purports to be an application for leave to appeal against the Decision, is procedurally incorrect. I had already informed the Plaintiff that a summons was required and that he should produce a draft Notice of Appeal. As I understand the position, the Plaintiff has thus far not issued a summons or produced a draft Notice of Appeal.

4.2  The above is highly unsatisfactory and will be taken into account in any application by the Plaintiff should he decide to adopt the correct procedure and properly pursue an application for leave to appeal against the Decision.