THE CATHOLIC DIOCESE OF HONG KONG ALSO KNOWN AS THE BISHOP OF THE ROMAN CATHOLIC CHURCH IN HONG KONG INCORPORATION v. SECRETARY FOR JUSTICE

FACV No. 1 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2011 (CIVIL)

(ON APPEAL FROM CACV NO. 18 OF 2007)

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JUDGMENT ON COSTS

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Chief Justice Ma and Mr Justice Ribeiro PJ:

1.  On 13 October 2011, the Court handed down judgment unanimously dismissing the appeal.  The parties were given liberty to lodge written submissions as to costs in the event that such costs could not be agreed.  Submissions have now been received.

The parties’ respective positions

2.  The respondent’s position is simply that costs should follow the event, the appellant’s challenge to the constitutionality of the 2004 amendments to the Education Ordinance having failed at all three levels of court.  However, despite that outcome, the appellant submits that it should be awarded costs at first instance and in the Court of Appeal and that it ought to have all or “a reasonable percentage” of its costs before this Court. 

3.  The appellant contends that it was compelled to mount the challenge because the Government was taking the unacceptable position before and during the litigation of asserting that there were no limits to its power under Article 136(1) to change the previous practice of religious organizations in the running of their schools, etc, notwithstanding the protection afforded by Article 141(3). 

4.  The appellant also argues that its appeal against the decision of the Court of Appeal succeeded in that it secured this Court’s correction of the Court of Appeal’s error whereby the latter had confined the effect of Article 141(3) to the protection of religious organizations against discrimination with regard to the running of schools, etc.  The appellant submits that it:

“... succeeded ... in securing for all religious organizations the protection of their right to run, not just schools, but also hospitals and welfare institutions ‘according to their previous practice in so far as it involves the exercise of their right to freedom of religious belief and religious activity’ ... which would include their right (in the case of the Catholic Church) to arrange ‘for masses to be said on certain days; or for confessions to be heard; or for saints’ feast days to be celebrated; or for crucifixes to be displayed, and so forth.’”

The nature and outcome of the litigation 

5.  While it is true that the litigation has resulted in clarification of the phrase “according to their previous practice” in Article 141(3) of the Basic Law and some elucidation of the constitutional right to freedom of religion, the appellant did not institute the litigation in order to achieve those objectives. 

6.  Mr Martin Lee SC accepted that the 2004 amendments do not impede the appellant from laying down a Catholic vision and mission for its schools or from adhering to its practice of having morning prayers and religious instruction.[1]  There was no suggestion that the 2004 amendments posed any threat to freedom of religion.  The appellant’s goal throughout was to establish that by depriving it of absolute control over Diocesan schools, in particular by preventing it from exercising 100% control over the composition of each school’s management committee and the appointment of supervisors and principals in accordance with its previous practice, those amendments infringed Articles 136(1) and 141(3) and were unconstitutional.[2]

7.  The appellant failed to establish any infringement of Article 136(1) both factually and as a matter of construction.[3]  It also failed to establish any infringement of Article 141(3), the Court holding that the appellant’s asserted authority to appoint 100% of a school’s management committee, as well as the school’s supervisor and principal according to its previous practice, involves no constitutional right protected by the Basic Law.

8.  Accordingly, in the normal course the principle that costs follow the event ought to apply, with costs being ordered against the appellant in the present case.  Is there any basis for applying a different or modified rule?  In our view, the answer is “No”. The appellant now seeks to take credit for securing the elucidation of the constitutional right mentioned above, but that is unjustified.  The appellant was in fact at pains to dissuade the Court from adopting the view expressed in the judgment as to the effect of Article 141(3).  The appellant sought to do this not only at the hearing but also, as pointed out in the Judgment,[4] a week after the conclusion of the hearing, when it sought leave to argue that the Court’s suggested interpretation of Article 141(3) was already catered for by Articles 137(1) and 141(1) and thus otiose.

9.  For the foregoing reasons, we order the appellant to pay the respondent’s costs here and below.

Mr Justice Bokhary PJ:

10.  I agree that the appellant must pay the respondent’s costs here and below.  While I think that the appellant’s position in future is more secure under this Court’s judgment than it would have been under the Court of Appeal’s judgment, the undeniable fact remains that the legislation which the appellant wanted struck down was not struck down.

Mr Justice Tang NPJ :

11.  I agree with the joint judgment of Chief Justice Ma and Mr Justice Ribeiro PJ.

Mr Justice Gleeson NPJ :

12.  I agree with the joint judgment of Chief Justice Ma and Mr Justice Ribeiro PJ.