FACV No. 7 of 2011
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 7 OF 2011 (CIVIL)
(ON APPEAL FROM HCMP NO. 121 OF 2010)
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BETWEEN
CHAU CHEUK YIU (周卓堯)
Applicant
- and -
POON KIT SANG (潘潔生),
1st Respondentst Appellant)
LAU CHI KEUNG (劉志強),
2nd Respondentnd Appellant)
CHAN WAI KI (陳偉基),
3rd Respondentrd Appellant)
FUNG SIU YUEN (馮紹元),
4th Respondentth Appellant)
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Before:
Mr Justice Bokhary PJ, Mr Justice Chan PJ,
Mr Justice Ribeiro PJ, Mr Justice LittonNPJ and
Mr Justice Gleeson NPJ inCourt
Date of Decision: 18 July 2012
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DECISION ON COSTS
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Mr Justice Chan PJ:
1. On 24 May 2012, the Court handed down judgment in this case, allowing (by a majority with Mr Justice Bokhary PJ dissenting) the appeal of the respondents. The Court also made an order nisi that the respondents be awarded their costs of this appeal. Pursuant to the directions given by the Registrar, the respondents now apply to vary that order nisi by seeking not only the costs of this appeal but also “the costs below” which no doubt is a reference to the costs in the Court of Appeal, there being no dispute as to the costs order made by the judge at first instance.
2. There is no dispute that Mr Chau has to bear the costs of this appeal including the costs of the application for leave before the Appeal Committee. The parties disagree on the costs incurred in the Court of Appeal.
3. There were 3 hearings in the Court of Appeal as a result of Mr Chau’s application for extension of time to appeal. On 2 February 2010, Rogers VP, sitting as a single judge of that court, granted an extension of time and ordered that the costs of that application be in the cause of the appeal. Then on 6 August 2010, the Court of Appeal (Le Pichon and Yuen JJA) dismissed the respondents’ motion to set aside Rogers VP’s order and ordered costs against the respondents. Finally, on 1 February 2011, that court (Le Pichon, Yuen and Kwan JJA) refused leave to appeal to this Court and again ordered costs against the respondents. Since this Court allowed the respondents’ appeal and set aside the order granting extension of time, these 3 orders for costs have to go.
4. The respondents argue that there is nothing in the present case to justify a departure from the normal rule that costs should follow the event which should include not only the costs in the appeal before this Court but also the costs in the proceedings before the Court of Appeal which had wrongly granted an extension of time to appeal.
5. On the other hand, Mr Chau submits that the interests of justice in this case, while not sufficient to convince the majority of the Court to allow him to appeal further, require that he should not be penalized for attempting to pursue his rights which were denied him as a result of a previous erroneous understanding of the law by the lower courts.
6. With respect, we are unable to accept the submissions made on behalf of Mr Chau. The interests of justice were not overlooked in the application of the Hung Chan Wa principle. The fact remains that Mr Chau successfully obtained an extension of time to appeal before the Court of Appeal but as the majority of the Court held, there was no exceptional circumstance for granting such an extension and the Court of Appeal was wrong to have done so. Mr Chau, having had the orders which he had obtained set aside on appeal, should bear the costs of this appeal as well as those in the court below.
7. In the result, we order as follows:
(1) The respondents do have their costs of this appeal including the costs of the application for leave before the Appeal Committee and their costs before the Court of Appeal in HCMP 121 of 2010, all costs to be taxed if not agreed;
(2) All the orders for costs made by Rogers VP and the Court of Appeal be set aside; and
(3) Mr Chau’s own costs before this Court and the Court of Appeal shall be taxed in accordance with the Legal Aid Regulations.
8. Mr Justice Bokhary PJ, who dissented, has informed me that he has no quarrel with the foregoing as a consequence of the majority’s view.
(Kemal Bokhary)
(Patrick Chan)
(R A V Ribeiro)
(Henry Litton)
(Murray Gleeson)
Written submissions by Ms M L Chang, Government Counsel of the Department of Justice, for the appellants
Written submissions by Hastings & Co., assigned by the Director of Legal Aid, for the respondent