EQUAL OPPORTUNITIES COMMISSION v. APPLE DAILY LTD

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 168
(Civil)

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REASONS FOR COSTS RULING

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Nazareth, V.-P.:

1. The appellant has sought costs in the usual way. This is resisted by Mr Wong for the respondent. He makes two points. First of all, he points to the appellant having failed to perfect the order before the appeal was set down for hearing. In fact, even when the matter was pointed out, he says, over a month ago to the appellant, no action was taken until two days before the hearing of the appeal. Upon that basis, he says that the costs prior to such remedial steps should be to the respondent.

2. For myself, I find no merit in this ground. It was simply a technical omission which could have been cured as it was at any time. The respondent can hardly have been prejudiced. The respondent could not have assumed that that step would not be cured at some stage. There has been no suggestion of prejudice, which anyway would not have been sustained in the circumstances. In the result it does not seem to me that this is of itself a good ground for not making the usual order that costs should follow the event.

3. As to the second ground, Mr Wong takes us to s.73B(3) of the District Court Ordinance. That section provides for rules in relation to jurisdiction under the Sex Discrimination Ordinance and subsection (3) provides:

"(3) Each party to any proceedings in the Court in the exercise of its jurisdiction under the Sex Discrimination Ordinance (Cap 480) shall bear its own costs unless the Court otherwise orders on the ground that-

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs."

He submits that there is no question of the proceedings having been brought maliciously or frivolously nor of other special circumstances and that this "principle" of each side bearing its own costs in sex discrimination cases should extend to appeals. However, it seems to me that there is a difference between appeals and such hearings in the District Court which are regulated by s.73B; e.g. subsection (5) of that section provides that:

"The court in exercise of its jurisdiction under the Sex Discrimination Ordinance shall not be bound by the rules of the evidence and may inform itself on any matter in such manner as it thinks fit with due regard to the rights of the parties to proceedings therein to a fair hearing and the need to determine the substantial merits of the case in the need to achieve a prompt hearing of the matters at issue between the parties."

This it seems to me demonstrates an informal and practical approach which, however, does not extend to a hearing in the Court of Appeal in which our normal rules of procedure and evidence and so forth apply. In these circumstances it does not seem to me right to draw the inference that subsection (3) of s.73B was intended to be carried forward into appeals to the Court of Appeal. Had that been the intention, it seems to me, that plainly it would have had to and would have been spelt out.

4. There is finally Mr Wong's point that these proceedings seem to have been regarded by the respondent as a test case. I do not think that that was conceded by Mr McCoy although Mr McCoy did say it was the principle and the legal position that the appellant was concerned with, and not necessarily with pursuing Apple Daily.

In the result I can see no good reason to deny the Commission its costs of the appeal. In those circumstances I would make an order that the appeal is allowed with costs to the appellant.

Liu, J.A.:

5. I have to defer to the Vice-President's decision made, on the parties' insistence, for entertaining the question of costs in the absence of Leong, JA. The appeal was regarded as competent by all. The technicality had no role to play in the hearing of this appeal. S. 73(B)(3) of the District Court Ordinance cannot have the effect of depriving this court of its usual discretion as regards costs. As to the hearing before the judge in the District Court, an error of law was allowed to be made. The respondent supported the approach of the judge. In my view, wasted costs in the District Court must be properly reflected in an order of this court. There is no substance in the submissions advanced. I agree with the order proposed by the Vice-President, the decision of the judge having been set aside.

Nazareth, V.-P.:

The Commission is accordingly to have its costs of the appeal.