CITIC PACIFIC LTD v. SECRETARY FOR JUSTICE AND ANOTHER

HCMP767/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 767 OF 2010

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BETWEEN

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RULING ON COSTS

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1.  A hearing was held on 9, 10 and 11 March 2011 of an originating summons filed on 23 April 2010 concerning the issue of whether legal professional privilege applied to (a) documents which had been seized by the police from the plaintiff's premises (the seized material) and (b) documents which had been surrendered by the plaintiff to the Securities and Futures Commission (the surrendered material).

2.  It was recognised by the parties that different considerations applied to the two sets of material. When the hearing commenced it became apparent that further investigations were required concerning the very substantial number of documents which comprise the seized materials. As a result the hearing in respect of those documents, being the relief sought in §§ 1(i), (ii), (iii) and (iv)(b) of the originating summons, was adjourned to 18 July 2011 with directions regarding the further hearing. Costs were reserved.

3.  The hearing then proceeded in respect of the seized materials. At the conclusion of the hearing I reserved my judgement which was then handed down - in two parts, with the publication of one of which was restricted - on 18 March 2011. The plaintiffs claim in respect of the seized material, that being the relief sought in §§ 1(iv)(a), (v) and (vi) of the originating summons, was dismissed. The parties were directed to file and serve written submissions on costs within 14 days.

4.  The defendants identified six areas in respect of which they sought an order. The plaintiff, in a reply, did not dispute that those were items in respect of which an order needed to be made but persisted in the approach which they had adopted in their original submissions which was that the "fairest order" would be that no order as to costs should be made relating to the seized material. The basis of that approach was said to be the manner in which the defendants had conducted their defence, with, in respect of certain aspects, particular emphasis on lateness of the provision of information or making of applications.

5.  I do not regard that as being a realistic submission in the present matter. There is no doubt that there is  a vast collection of material which is the subject of these proceedings of which the surrendered material forms a tiny fraction of one per cent. There has been extensive cooperation between both sides, to their respective credit, in an attempt to put the material into a workable shape. Whether this matter turns out to be complex as a question of law remains to be seen but there can be no doubt that the sheer volume of material which it has been necessary to address is unusual.

6.  Whilst I take the point made by the plaintiff and illustrated in its chronology that certain matters might have been attended to earlier, I can see no justification for a blanket order depriving the defendants of  such costs to which they might otherwise be entitled. I am not persuaded that there is any discernible reason in this matter why the general principle that costs follow the event should not be applied, subject to §§9 and 10 below.

7.  The costs of a directions hearing on 13 July 2010 were reserved. Both parties accept that that order should remain, a view with which I concur.

8.  In regard to the plaintiff’s summons dated 1 March 2011 seeking to amend the originating summons, that amendment relates solely to the surrendered documents. The plaintiff is to pay the defendants’ costs. In respect of the summons for stay of execution issued on 18 March 2011 and the attendance at court on that date, the defendants are to receive their costs. Similarly, it is appropriate that the costs of the written submissions in respect of this issue of costs be paid by the plaintiff.

9.  A summons was taken out by the second defendant on 7 March 2011 seeking leave to file and serve a further affirmation of a Senior Inspector of Police. The contents of that affirmation, as brief as they may have been, were so fundamental to the proceedings that I cannot see any valid reason why they were not included in the original affirmation. No explanation was ventured as to why this did not happen. There will be no order of costs in respect of this item.

10.  In respect of the hearing itself the defendants seek costs as well as a certificate for Leading Counsel. The plaintiff, perhaps understandably, did not deal directly with the issue of the certificate. Such an order is justified and granted. I am cognisant of the fact that time on 9, 10 and 11 March was devoted to submissions made regarding the seized materials and discussions concerning the further proceedings in respect of them. That amounted to not less than one quarter of the time. Consequently the defendants will receive three quarters of the costs of the hearing, with the remaining one quarter to be reserved insofar as such an order is necessary in the light of the order made on 11 March 2011.