WONG SIU YEE v. CHIANG SAI CHEONG

IN THE COURT OF APPEAL

1996, No. 91
(Civil)

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

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

J U D G M E N T

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

Litton, V.-P.:

1. This appeal concerns a pure question of costs. It comes to this court with leave of the Judge, Yam J.

2. The appellant Mr Chiang Sai Cheong was the successful candidate in the Kowloon City West constituency for the Urban Council elections held on 5 March 1995. The respondent Mr Wong Siu Yee was also a candidate and was unsuccessful.

3. On 2 May 1995 Mr Wong lodged an election petition, challenging Mr Chiang's election based upon two grounds: (1) that, during the election, Mr Chiang had made a false statement concerning Mr Wong's personal character, contrary to s16(1) of the Corrupt and Illegal Practices Ordinance, Cap 288 and (2) that Mr Chiang had made a false statement concerning himself, contrary to s16(1A) of the same Ordinance.

4. It is necessary to stress at the outset that this appeal concerns not ordinary commercial litigation but a special process under Part VI of the Electoral Provisions Ordinance, Cap 367 by which the election of Mr Chiang as the Kowloon City West member was questioned under s30(1)(a) of that Ordinance: namely that the person (Mr Chiang) declared by the returning officer to have been duly elected in the March 1995 elections was not duly elected, by reason of the alleged illegal practices: that is, the publication of the alleged false statements during the election. This is litigation in the public law field, where the question of costs should be seen in a wider context than the immediate interests of the parties.

5. The details of these alleged false statements are not relevant to what we have to decide: But, to persons not embroiled in the passions of the contested elections at that time, the allegations do not appear to be of the most serious kind: particularly the second matter of complaint: that Mr Chiang had falsely claimed the credit for himself for the construction of an Urban Council park at Chun Man Court: Apparently the Housing Authority had wanted to build an old people's home there, to which the residents of Chun Man Court had objected.

6. Be that as it may, the petition came on for hearing before Yam J in July 1995. The proceedings were adjourned on 17 July 1995 after 10 hearing days and resumed on 30 January 1996 when judgment was given against Mr Wong.

7. On the first complaint, the issue before the judge was this: Was the statement made by Mr Chiang false? Mr Wong failed to satisfy the judge on this point.

8. On the second complaint, the judge's finding was as follows:

" In the end I find [Mr Chiang] has not wilfully made or published any false statement of fact in relation to himself in the leaflet for the purpose of promoting or procuring his election as alleged by [Mr Wong].

Further, [Mr Chiang,] from the evidence before me and known to [Mr Chiang] himself, has every reason to believe what he stated in the leaflet was true and he is entitled to rely on the defence raised or provided by subsection (1B), i.e. he had reasonable grounds for believing and did believe the statement made by him."

9. The petition was accordingly dismissed.

10. When it came to the question of costs the Judge made no order. The reasons may be summarised as follows:

(1) In relation to the first complaint, the petition could not be said to be groundless.

(2) In relation to the second complaint, Mr Chiang's statement was "in fact not quite correct", but the falsity was not such as to merit an adverse finding under s16(1A) of the Corrupt and Illegal Practices Ordinance.

11. As mentioned before, we are concerned with a special process under Part VI of the Electoral Provisions Ordinance. As regards costs, Rule 22(1) gives the court a broad discretion as to the "manner" and "proportion" in which the costs should be defrayed. Rule 22(2) then provides:

"(2) Any costs which in the opinion of the Court have been caused by vexatious conduct, unfounded allegations or unfounded objections on the part either of the petitioner or of the respondent, and any needless expenses incurred or caused on the part either of the petitioner or of the respondent, may be ordered to be defrayed by the parties by whom those costs or expenses have been incurred or caused whether or not those parties are on the whole successful."

12. The hearing, surprisingly, lasted 11 days before the Judge. So much for the brief and summary process which Part VI and the rules made under s34(3) were meant to provide. As to costs, it is the trial judge who is in the best position to assess how, at the end of the day, the costs should be apportioned as between the parties: Even if this court should read the transcript from beginning to end, we would not have the same advantage as the Judge concerning the "feel" of the case. The question as to who, in the end, was the "winner" is only one of the factors which go into the equation.

13. Should the Judge have awarded the whole of the costs of the petition to Mr Chiang, or only part of the costs? Or should he simply have left the costs where they lay, as he in fact did?

14. Unless there is some principle of law which says that the court must award all the costs to the successful party to proceedings under Part VI of the Electoral Provisions Ordinance, then I cannot how the judge's exercise of discretion can be faulted. Plainly, there is no such rule. Rule 22(1) is wide enough to allow the judge to leave the costs where they lay.

15. In my judgment, the law is correctly stated in para 962 Vol. 15 (Halsbury 4th Ed.) as follows:

"There are many grounds of departure from the general rule that costs follow the event on which the court, in its discretion, will award the bulk of costs to a party who has failed on a main issue, or make no order as to costs or apportion the costs as to the court seems fit."

16. Here the judge reached the view that, although the petition failed, there were matters for inquiry, and he therefore made no order as to costs. Whether, in the circumstances, this court would have made the same order as the judge is not the issue. The issue is whether the judge has erred in principle to the extent that this court should interfere: bearing in mind the fact that, as regards the determination of the petition itself, s37(1)(c) prescribes finality. In my judgment the order that was made was well within the judge's wide discretion and he has not erred in principle in the exercise of that discretion.

17. I would accordingly dismiss this appeal.

Godfrey, J.A.:

18. I agree.

19. The reason given by the judge for making no order as to costs here was, as I understand it, that the judge thought the case was one which warranted investigation and had not been brought unreasonably. (This, although a gloss on what the judge actually said, which was that the case was "not entirely groundless", is, I believe, a fair interpretation of his remarks.) I would hold it within the judge's discretion in such circumstances to decide as he did to make no order as to costs. I accept that the ordinary rule as to costs in an election petition (as in civil litigation generally) is that the costs should follow the event; and that the discretion conferred on the judge is one which he is bound to exercise judicially. A successful party ought not to be deprived of his costs without some good reason. But I would echo, in connection with orders for costs in election petitions, what Lord Goff of Chieveley said in relation to costs in civil litigation in Aiden Shipping Co. Ltd. & Interbulk Ltd [1986] AC 965, at p.981:

"Courts of first instance are well capable of exercising their discretion [as to costs] in accordance with reason and justice."

20. I am satisfied that the judge, having exercised his discretion here, as it seems to me, "with reason and justice", has exercised it in a manner with which this court ought not to interfere.

21. For these reasons, as well as those given by Litton, V-P, I too would dismiss this appeal.

Mayo, J.A.:

22. I agree entirely with the observations made by the Vice-President and by Godfrey JA and there is nothing that I can add usefully.