COMILANG, MILAGROS TECSON AND ANOTHER v. DIRECTOR OF IMMIGRATION

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FACV No. 10 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 60 OF 2016)

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JUDGMENT ON COSTS

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The Court:

1.  By the Court’s Judgment dated 4 April 2019, the appellants’ appeals against the judgment of the Court of Appeal were dismissed.[1] In paragraph [92] of our Judgment, we invited the parties to make submissions on costs in writing.

2.  The Director of Immigration, respondent to the appeals, relying on the usual rule that costs follow the event, invites the Court to order that the appellants in each of the two appeals pay his costs of the appeals, to be taxed if not agreed, and with a certificate for three counsel.[2]

3.  For their part, the appellants resist such a costs order and seek an order that: (i) there be no order as to the costs of these appeals, including the costs of the applications for leave to appeal; (ii) the appellants’ own costs be taxed according to the Legal Aid Regulations; and (iii) there be a certificate for three counsel.

4.  We are satisfied that it would be right to exercise our discretion as to costs in the present case by making an order that there be no order as to the costs of the appeals, including the applications for leave to appeal, for the following reasons:

(1)     The issues in the appeals depended, crucially, on a close analysis of a trio of important decisions of the Court (see the references in the Judgment at [16]) raising, in particular, the constitutional status, scope and effect of section 11 of the Hong Kong Bill of Rights Ordinance (Cap.383) (“HKBORO”).

(2)     In turn, the particular issues of whether a foreign national parent of a child who is a permanent resident of the Hong Kong Special Administrative Region can rely on the child’s rights in applying to remain in Hong Kong, and whether the child can rely on its own rights to support the parent’s application to remain in Hong Kong, were very important issues that had not previously been argued in this Court.

(3)     Although the appellants brought the proceedings for their personal benefit, in respect of the novel issues raised, the appeals were in the nature of lead or test cases.  In the immigration context, the Court has previously endorsed the practice of making no order for costs in such a case: see, for example, Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at p.233I, Tam Nga Yin & Others v Director of Immigration (2001) 4 HKCFAR 251 at p.265H, and Fateh Muhammad v Commissioner of Registration & Another (2001) 4 HKCFAR 278 at p.287F-I.

5.  We are also satisfied that this case is suitable for the grant of a certificate for three counsel in respect of these appeals.  Whilst the Court’s practice on the grant of such certificates (see Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd (No.3) (2016) 19 HKCFAR 142 at [2]) is to require “something exceptional”, it is to be noted that the certificate is sought in the present case in relation to the legal aid taxation of the appellants’ own costs and not for the purposes of seeking those costs as against an adversary.  In any event, as noted above, the issues involved were both novel and very important.  The arguments in the present appeals were far-reaching and involved a review of the correctness of the Court of Appeal’s long-standing judgment in In re Hai Ho Tak and Cheng Chun-heung [1994] 2 HKLR 202 as well as a review of the scope and effect of section 11 of the HKBORO.  For all these reasons, we are satisfied that the case is sufficiently exceptional to merit the exercise of discretion to grant a certificate for three counsel for the appellants.

6.  We therefore make an order in relation to the costs of these appeals in terms of the orders set out at [3] above.