LAI TAK SHING v. DIRECTOR OF HOME AFFAIRS

CACV 201/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 2005

(ON APPEAL FROM HCAL 82 OF 2003)

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J U D G M E N T

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Hon Cheung JA :

1. This is an appeal by the applicant against the judgment of Chung J dismissing his application for judicial review against the decision of the Secretary for Home Affairs (‘the Secretary’) made on 18 July 2003.  The decision by the Secretary was to refuse the applicant’s request to him to amend Schedule 2 to the Village Representative Election Ordinance, Cap. 576 (‘the Ordinance’) by adding the village of Tsing Yi Hui (青衣墟) to the list of indigenous villages in that Schedule.   

2. In addition the applicant also appeals against a costs order made by the judge against him in favour of the intervener Tsing Yi Rural Committee (‘the Committee’).

Chan Wah and others

3. On 22 December 2000 the Court of Final Appeal in Secretary for Justice and others v. Chan Wah and others [2000] 3 HKCFAR 459 held that the system of village representative election in the New Territories which excluded a non-indigenous villager from standing as a candidate and as a voter was inconsistent with the Bill of Rights, the Sex Discrimination Ordinance and the Basic Law. 

4. Following this decision, the Hong Kong government introduced the Ordinance in 2003.  

The Ordinance

5. Without going into details, the Ordinance established three Schedules of villages.  Schedule 1 deals with existing villages.  Schedule 2 deals with indigenous villages.  Schedule 3 deals with composite indigenous villages.  Again for the purpose of this case one can ignore the composite villages and concentrate on the existing and indigenous villages.  Under Schedule 1 there are 681 existing villages.  Under Schedule 2 there are 586 indigenous villages.  The significance is that an existing village and an indigenous village may overlap.  Where a village whose name appeared both under Schedule 1 and Schedule 2 that village may elect resident representative and also indigenous inhabitant representative. 

6. The function of a resident representative for an existing village is to reflect the views on the affairs of the village on behalf of the residents of the villages.  A resident representative is not entitled to deal with any affair relating to the lawful traditional rights and interests of indigenous inhabitants.  (See section 5(3).) 

7. On the other hand the functions of an indigenous inhabitant representative for an indigenous village are :

(a)	to reflect views on the affairs of the village on behalf of the indigenous inhabitants of the village; and
(b)	to deal with all affairs relating to the lawful traditional rights and interests, and the traditional way of life of those indigenous inhabitants.

8. In other words within the same village there are two types of village representatives.  The indigenous inhabitant representative will take care of the affairs of the indigenous inhabitants while the resident representative will take care of the affairs of the village other than those affecting the indigenous inhabitants.  This measure overcomes the problem identified by the Chan Wah decision where non-indigenous inhabitants in an indigenous village were excluded as either voters or candidates in indigenous village elections. 

The 1991 List

9. In March 1988 the Buildings and Lands Department prepared a list of established villages in Hong Kong.  In 1991 the Heung Yee Kuk established a new list of established villages.  Many of the villages which had been omitted or wrongly entered in the 1988 list had their entries rectified in the 1991 list.  As announced by the Chairman of Heung Yee Kuk the origin of the 1991 list was to ensure that the rights of indigenous inhabitants of the New Territories would be protected by Article 40 of the Basic Law.  Tsing Yi Hui appeared in the 1991 list. 

The applicant’s case

10. The applicant claimed to be an indigenous inhabitant which means that he is a descendant through the male line of a resident of an indigenous village who lived there in 1898.  He claimed to be an indigenous inhabitant of Tsing Yi Hui in the Tsing Yi District.  Tsing Yi Hui, however, is not one of the villages set out in Schedule 2 of the Ordinance. 

11. In March 2003 the applicant applied to be registered as a voter of Tsing Yi Hui under the Ordinance.  His application was refused in April 2003 on the ground that Tsing Yi Hui was not included in Schedule 2.  He also asked the Home Affairs Department (‘the Department’) to add Tsing Yi Hui to the Schedule.  There was also correspondence between him and the Department on the indigenous inhabitants’ status of his father and himself. 

Request to amend

12. By a letter dated 3 July 2003 the applicant’s solicitors wrote to the Secretary.  The letter stated that despite repeated requests made by the villagers of Tsing Yi the Department has failed to include Tsing Yi Village in the Schedules of the Ordinance.  The letter further stated that

‘Having regard to the above, we are of the view that Tsing Yi Village should have been included in the list of Schedule 1 to 3 of the said Ordinance.  According to section 67 of the said Ordinance, the Secretary may, by order published in the Gazette, amend Schedule 1, 2 or 3.  You are kindly invited to re-consider to include Tsing Yi Village in the Schedule and exercise your power to make the necessary amendment soonest.’

Letter of 18 July 2003

13. The response of the Secretary came by way of a letter dated 18 July 2003.  In view of the importance of the letter I will set out in full the relevant part of the reply:

‘Villages included in the 2003 Village Representative election are listed in Schedules I, II and III of the Village Representative Election Ordinance (the Ordinance) (Cap. 576).  The Schedules were compiled upon extensive consultation with Rural Committees and the Heung Yee Kuk.  The basic principles are that villages eligible for inclusion in the 2003 Village Representative election should be those currently under the Village Representative system in the New Territories and those that are recognised by the respective Rural Committees.

Tsing Yi Hui （青衣墟）, though contained in the “List of Established Villages” issued in 1991, is not a village recognized by Tsing Yi Rural Committee and village representative election has not been held there since the establishment of Tsing Yi Rural Committee in the 1950s.  In the circumstances, Tsing Yi Hui is not in the Schedules of the Ordinance and is not included in the Village Representative election in 2003.

Mr LAI Tak-shing’s status as an indigenous villager of Tsing Yi was confirmed by Lands Department in 1999.  But in 2002, in its letter of 4 November 2002 to Tsing Yi Rural Committee, at Annex I, Lands Department stated categorically that LAI’s ancestor was from Ma Wan.  Furthermore, the Director of Home Affairs has written to Mr. LAI on 28 February 2003, at Annex II, to explain to him the reasons for not including Tsing Yi Hui in the Village Representative Election in 2003.  Then, in the light of section 7 of the Ordinance, Mr LAI made a claim to the Revising Officer on 2 May 2003 that he was eligible to be registered as a voter in Tsing Yi Hui for the Village Representative election in 2003.  His claim was heard on 12 May 2003 at Fanling Magistracy, but was rejected.

Regarding your suggestion of including Tsing Yi Hui to the Village Representative Election system, we would relay your proposal to the Tsing Yi Rural Committee for consideration.

We are grateful to your client for his continuing interest in the village representative elections.’ (emphasis added)

The decision under challenge

14. The decision which was being challenged in the judicial review was the decision of the Secretary as contained in the letter of 18 July 2003 refusing to amend Schedule 2 so as to include Tsing Yi Hui to be one of the indigenous villages in that Schedule.

Section 67

15. Section 67 of the Ordinance provides that

‘	67.	Secretary may amend Schedule 1, 2 or 3
		(1)	The Secretary may, by order published in the Gazette, amend Schedule 1,2 or 3.
		(2)	An order under this section may contain such incidental,consequential, supplemental, transitional or saving provisions as may benecessary or expedient in consequence of the order.’

The applicant’s case

16. The gist of the applicant’s case is that section 67 confers a discretion on the Secretary to amend the Schedule.  The Secretary had wrongly fettered his discretion by allowing a question of policy endorsed by the legislature to conclusively determine the exercise of that discretion. 

17. The wrongful fettering of a discretion by a decision maker is clearly a public law issue.  Mr Dykes S.C., appearing together with Mr Kenneth Lee as counsel for the applicant, informed the court that it was an issue that had been raised by the applicant before the judge.  Mr Kwok, counsel for the Secretary, and Mr. Jat S.C., appearing together with Mr Thomas Au as counsel for the Committee, did not disagree with Mr Dykes’ statement.  However the judge had not addressed this issue in his judgment.  This may well have been due to the approach taken by the parties below in which they asked the judge to address certain evidential issues. 

No decision been taken?

18. Before I deal with this issue, I will first of all deal with a point now taken by Mr Kwok who argued that no decision had in fact been taken by the Secretary.

19. I have to say that I am surprised by this submission.  In the hearing below this point was simply not taken either in the evidence adduced by the Secretary or in the submission of Mr Kwok.  Form 86A of the application clearly identified the decision under challenge was the decision by the Secretary to refuse to amend the Schedule as set out in the letter of 18 July 2003.  If it had been argued that no decision in fact had been taken by the Secretary, it is inconceivable that the court would have granted leave to the applicant to apply for judicial review and then proceeded to determine the case.

20. Mr Dykes submitted that the letter of 18 July 2003 had been treated as a decision of the Secretary.  In my view this must be so considering the way the parties conducted their case.

21. In any event, according to the terms of the letter which first of all, maintained that villages included in the Schedule should only be those under the current village representative system and so recognized by the rural committees and secondly in referring the request to amend to the Committee lent support to the applicant’s case that the Secretary had in effect refused his request to amend the Schedule.

22. Further on any reading of the evidence filed by the Secretary his case was that the decision not to amend the Schedule was a correct one. There can be no question that the Secretary had in fact made a decision refusing to amend the Schedule.  Nor can it be realistically said that the only decision made by the Secretary was to refer the matter to the Committee and that it had not yet made a decision on the request.

Principles on fettering of discretion

23. Turning to the fettering of discretion issue, the principle is that a body entrusted with duties or with discretionary powers for the public benefit effectively may not avoid its duties or fetter itself in the discharge of its powers (including duties to exercise its powers free from extraneous impediments).  Such fettering of discretion may be by way of a fixed rule of policy.  A body that does fetter its discretion in that way may offend against either or both of two grounds of judicial review: legality and procedural propriety.  The rationale of the principle is to ensure that two perfectly legitimate administrative values, those of legal certainty and consistency, may be counteracted by another equally legitimate administrative value, namely, that of responsiveness.  While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case (See de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5^th Edition Paras 13–028, 11–001 and 11–004).

24. Thus Lord Browne-Wilkinson in R. v. Secretary of State for the Home Department, Ex p. Venables (1998) AC 407 stated that :

‘When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time.  In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future.  He cannot exercise the power nunc pro tunc (meaning ‘now for then’).  By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176; British Oxygen Co. Ltd. v. Board of Trade [1971] 1 A.C. 610.  But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised.  If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp. 506 et seq., paras. 11—004 et seq.’

25. See also Lavender and Son v. Minister of Housing and Local Government [1970] 1 WLR 1231, Re Hong Kong Hunters’ Association Ltd [1980] HKC 8, R. v. Rochdale Metropolitan Borough Counsel Ex p. Cromer Ring Mill Ltd [1982] 3 All ER 761, Vu Ngoc Dung v. Criminal Law Injuries Compensation Appeal Board [1996] 3 HKC 346 and also R. v. Environment Secretary, Ex p. Brent L.B.C. [1982] Q.B. 593.

26. In Ex p. Brent L.B.C. the Divisional Court in England expressly rejected an argument that where a discretionary power is given by the legislature to pursue a policy on a general basis for the public benefit generally, so that the Secretary of State has a choice solely of whether or not to exercise the power, he is entitled to implement the policy of which parliament has approved without listening to any representations. 

Legislative intent

27. In answer, Mr Kwok argued that the legislative intent and not merely the policy behind the Ordinance is to include only those villages that had taken part in the 1999 village representative election.  He relied on the evidence of Mr Stephen Fisher, the Deputy Secretary for Home Affairs in the Home Affairs Bureau who was responsible for processing the village representative election bill and steering it through the legislative process.  Mr Fisher stated in his affidavit filed in opposition to the applicant’s case that

‘	9.	the government recognised the need for legislation to provide for electoral arrangements for VR (i.e. village representative) elections to ensure that they are conducted in an open, fair and honest manner and that they are consistent with the rulings of the Court of Final Appeal.  With these considerations in mind, it was decided that village representative elections should be put under a statutory framework.
	10.	Against this background, extensive consultations with the HYK (i.e. Heung Yee Kuk) and the 27 RCs (i.e. rural committees) were conducted.  Several meetings were held between HAB (Home Affairs Bureau), HAD (Home Affairs Department) and HYK between April and July 2002 to discuss the proposed arrangements.
	11.	An underlying principle for the proposed legislation was that the 2003 VR election should be held for indigenous villages (Indigenous Villages or Composite Indigenous Villages) and existing village settlements (Existing Villages) which were included in the village representation system in the New Territories and in the VR election in 1999.’

28. Mr Fisher referred to the Legislative Council Brief for the village representative election bill issued by the Home Affairs Bureau (‘the Bureau’) to Legislative Council in late September 2002 which stated that

‘Village Representative elections should be held for indigenous villages (Indigenous Villages or Composite Indigenous Villages) and existing village settlements (Existing Villages) now included in the village representation system in the New Territories.’

29. Mr Fisher stated that

‘	13.	.....
		The legislative intent of the bill was that the village representative elections should be held for villages then included in the village representation system only.’

30. Mr Fisher concluded by stating that :

‘

18.

Tsing Yi Hui was not included as an indigenous village in the 1999 VR election and had not been recognized by the relevant RC as a village under the village representation system.  Accordingly, the Secretary had not included it in either the “Existing Village”, “Indigenous Village” or “Composite Indigenous Village” list for the 2003 VR election.’

Matter of construction

31. While I accept that the evidence showed that the policy behind the Ordinance is to have village representative elections held for those villages which were already included in the village representation system in the New Territories in 1999, I do not accept that the wording of the Ordinance showed that must be the legislative intent as well. 

The approach

32. To start with, Bennion’s Statutory Interpretation 4^th edition, section 228 states that

‘	Use as an indication of Parliament’s intention
	(1)	Parliament’s overall intention is to be gathered from the words of the Act.  These are to be given an informed interpretation however, and enacting history is an important element here.
	(2)	The nature of the remedy provided by the enactment to counter the mischief is of the essence of its meaning.  Here above all the Act should speak for itself, and be interpreted directly by the court.  The court will look with caution and reserve at any outside statement which purports to lay down the legal meaning of a remedial provision in an Act.
	(3)	Care must always be taken to guard against the possibility that an intention suggested by the legislative history was in the end departed from by Parliament.’

33. Lord Steyn in R. (on the application of Edison First Power Ltd)v. Central Valuation Officer and another [2003] 4 All ER 209 deals with the question of statutory construction as follows:

‘In the end the problem before the House is one of vires.  The text of the statute must be the starting point.  The question is how far, on a contextual reading of the statute, the language is capable of stretching.  While I accept that all relevant contextual material must be taken into account, not all the material deployed by the Secretary of State can affect the point of statutory construction.  Thus while I accept that the consultation process in this case is admissible, it ultimately does not warrant an interpretation which attributes to the language used by Parliament a meaning which displaces the presumption.  The objective setting of the statute does not in logic and common sense reveal a Parliamentary intent to override the presumption.’  (emphasis added)

The present case

34. The words used in section 67 are simple words, namely ‘the Secretary may amend the schedule’.  There is no qualification imposed in section 67 itself that the amendment should only be made by reference to the then existing village representative system. 

35. Likewise looking at the Ordinance as a whole there is no provision whatsoever that election could only be held for those villages which had already been included in the then election system.  If that was the case the Ordinance could easily have included such provisions in its content.  While no doubt the Ordinance was enacted to overcome the problems identified by the Court of Final Appeal in Chan Wah, the wording of the Ordinance itself does not show that that was the sole purpose.  I have to reject Mr Kwok’s argument that the Ordinance is intended to deal only with the issue of ‘franchise’ and not ‘constituency’.

Consultation with others

36. Mr Kwok argued that there is nothing in the Ordinance which prohibits the respondent from seeking views, including views from the rural committee on a suggestion to amend the schedule.  I have no difficulty with this approach.  However, what is being complained of is that the discretion to amend lies with the Secretary and the view of the rural committee is only one of the many factors he should have taken into account in considering whether to amend or not.  As the matter now stands the Secretary has entirely given up his discretionary power to consider the application to amend. 

Method of amendment

37. Mr Kwok in his written submission stated that the power to amend would only be exercised when an existing village ceased to exist and hence should be deleted from the schedule.    I disagree.  Absent any express provision that the scheduled villages should only be confined to those that had taken part in the village election in 1999, there may well be circumstances in which additional villages should be included in the schedule as well.  The power to amend is a wide one including both deletion and addition of villages.

Exercise of statutory power

38. Mr Kwok argued that section 67 is not concerned with a discretion but the exercise of a statutory power and that the Court when deciding the lawfulness of an exercise of a statutory power, should consider the reasonableness of the decision in light of the terms of the statutory power in context, the circumstances leading to the enactment and the fairness of the outcome.  He relied on the case of R (on the application of Edison First Power Ltd)v. Central Valuation Officer and another UKHL 20 [2003] 4 All ER 209.

39. I do not see how the case relied upon by Mr Kwok would assist him.  The statutory power in this case is in the nature of a discretion.  This discretion has to be exercised in accordance with recognised principles.  The mere fact that you call this discretion a statutory power is no answer to the complaint raised by the applicant. 

Discretion not exercised

40. In my view the Secretary had not exercised the discretion that was conferred on him.

Inevitable decision?

41. Mr Kwok argued that the evidence showed that Tsing Yi Hui was a Hui (i.e. market) and not a village and it is not disputed that there was never any village representative election at Tsing Yi Hui.  He submitted that on the evidence the inevitable decision by the respondent would be a refusal to amend the Schedule as suggested by the applicant. 

42. As I understand, this argument is not directed towards to the primary question of whether the Secretary had exercised the discretion in the first place.  This is relevant only as far as whether relief should be granted the applicant bearing in mind that judicial review is ultimately a discretionary remedy.

43. Subject to one matter which I will deal with, I am not convinced with the inevitable decision argument.  If the discretion is to be properly exercised one has to ask whether the decision to limit the scheduled villages to those that had previously held an election was a rational decision.  However, it is premature at this stage to talk about inevitable decision when it is plain that the discretion whether to amend the Schedule or not had not even been exercised by the Secretary.  It is plain that the Secretary treated the ‘basic principles’ referred to in the letter 18 July 2003 as the complete answer to the applicant’s request to amend the Schedule.  There was no independent evaluation of the applicant’s case.  His decision to refer the matter of amendment to the rural committee further lent support to the applicant’s case that he had fettered the exercise of his discretion.

Findings of fact by the judge

44. However, what is unusual in this case is that the judge had made specific findings that

1.	Tsing Yi Hui was not an indigenous village and
2.	The applicant is not an indigenous inhabitant of Tsing Yi Hui.

45. Originally in Form 86A, the applicant sought a declaration that he is an indigenous inhabitant of Tsing Yi Hui within the meaning of section 2 of the Ordinance.  This relief was not pursued by him at the hearing.  Nonetheless the Committee still wanted to be heard on the correctness of the Secretary’s decision.  As stated in paragraph 19 of the judgment of Chung J the Committee supported the Secretary’s case that Tsing Yi Hui was not an indigenous village and that it contended that the applicant is not an indigenous villager of Tsing Yi District.  The judge proceeded to make the findings.  The applicant did not challenge the finding in the appeal.

The arguments

46. The Court invited the applicant and respondent to lodge further written submissions on the significance of the findings of fact by the judge because this point was not addressed in their oral arguments but obviously it has an important bearing on the relief sought.

47. Mr Dykes submitted that he did not challenge the finding of facts because they were not relevant to the only issue of the appeal, namely, fettering of discretion.  In essence Mr Dykes submitted that it was the Secretary who could decide whether a place is a village within the meaning of section 2 of the Ordinance.  The role of Chung J who heard the judicial review was only to supervise the Secretary’s decision making by applying relevant public law principles.  The two roles (administrative/judicial) are mutually exclusive.  He referred to Heptulla Brothers Ltd v. Thakore [1956] 1 WLR 289 and Sanders v Sanders [1952] 2 All ER 767 on the scope of jurisdiction of a tribunal in terms of making findings on facts.  He submitted that the material relied upon by the judge in the form of evidence from the Committee was not before the Secretary and did not come within any of the recognized exceptions concerning fresh materials.  The material was not relevant except possibly to the limited issue of standing by the applicant to apply for judicial review.  In Judicial Review by Supperstone and Goudie at paragraph 19.9.4 it is stated that

‘	There are some long accepted and uncontroversial exceptions to the exclusion of evidence that was not before the defendant public authority.  The court will generally allow fresh evidence in at least the following four circumstances:
	(1)	the court will receive evidence to show the nature and details of the material that was before the defendant public body at the relevant time;
	(2)	a court will consider evidence to determine a question of fact where the jurisdiction of a public body depends on that fact. In that situation, the court is entitled to look at new evidence as its role goes beyond that of reviewing the decision.  It must instead make up its own mind as to the ‘jurisdictional fact’;
	(3)	similarly to (2) above, a court can consider additional evidence to determine whether procedural requirements were observed. Where the chal­lenge is on the basis of failure to consider a relevant consideration, this might include evidence to assess the significance of the alleged failure;
	(4)	the court can consider evidence where the challenged act or decision is alleged to have been tainted by misconduct. Examples of such misconduct include bias or fraud.  Fresh evidence is admissible to prove the particularmisconduct alleged.’

See also ‘Fresh Evidence in Judicial Review’ by M Fordham [2000] JR 18.  Mr Dykes submitted the exception does not exist in the present case.

48. He further submitted that the Secretary has a continuing duty to consider revising Schedule 2.  As such there can be no question of the Secretary saying that the judge’s findings bind him and the Applicant.  A decision-maker who is under a continuing duty to monitor a state of affairs cannot disable himself from making a decision by regarding himself bound by a third party’s view of matters.  He must keep up to date with matters.  See E v. Home Secretary [2004] Q.B. 1044 at [68]-[75].

The reality of the situation

49. The principles relied upon by Mr Dykes are recognized.  However it is clear that by now the Court is not concerned with a hypothetical situation before Chung J where objections were taken to the admission of fresh evidence not previously before the Secretary.  The judge admitted the evidence and then proceeded to make findings.  Nor was the finding limited to the scope of standing of the applicant.  In the light of the statement at paragraph 19 of the judgment, it is clear that the findings applied to all the parties to the judicial review.

50. The starting point in judicial review is that it is unsuitable for resolving facts : see Judicial Review Handbook by M. Fordham (4^th Ed) para. 17.3.  But as the author recongized

‘Nevertheless, it may well be appropriate in judicial review for the Court to make findings of fact (with or without oral evidence), especially if crucial to whether a ground for intervention is made out.’

51. As there is no challenge to the findings the Court is not concerned with whether the step taken is appropriate or not.  It is only concerned with the effect of the findings.  Certainly as illustrated by R (A and others) v Lord Saville of Newdigate and others [2002] 1 WLR 1249 an appellate court did recognise the binding nature of the judgment of the judicial review court when it remitted a matter under challenge to the decision maker for consideration.

Whether relief should be granted

52. As the matter now stands this Court has to take into account the findings by the judge in deciding whether the applicant is entitled to relief even if a case on fettering of discretion has been made out.  In my view even if the matter is to be remitted to the Secretary for reconsideration, he will be bound by the findings of the judge. After all both he and the applicant were parties to the judgment of Chung J.  Where the underlying factual basis for the exercise of the discretion has been effectively determined against the applicant by the court, it will be futile to remit the matter to the Secretary even if he had not exercised the discretion in the first place.  Notwithstanding the continuing duty of the Secretary I just cannot see how it can realistically be said that he is not bound by the specific findings of the Court.

Standing

53. The issue of standing of the applicant to bring the judicial review was no longer an issue between the parties.  I do not need to address it.

Conclusion

54. For the reason I have given I will dismiss the appeal by the applicant in respect of his challenge of the Secretary’s decision.

Costs between the applicant and the Committee

55. The second appeal concerns the applicant’s appeal against the costs order made by the judge in favour of the Committee.  The Committee was not an original party to the application.  It applied to be joined as an intervener in these proceedings.

56. It is not necessary for me to go into procedural arguments whether the applicant is entitled to appeal against the costs order because he had not previously challenged the costs order nisi imposed by the judge.  On the merits I found the judge was correct in ordering costs to be paid by the applicant in favour of the Committee. 

The principles

57. The general rule is that where an application for judicial review is dismissed, the unsuccessful applicant will not be required to pay more than one set of costs if there are two or more respondents appearing.  Special circumstances may sometimes warrant the court ordering the unsuccessful applicant to pay two sets of costs (See Hong Kong Civil Procedure 2006 Vol. 1 at para 53/14/59).  Where a party can show that there is a separate issue on which he was entitled to be heard, being an issue not covered by the other party or parties in the proceedings he would be entitled to his costs (See Shiu Wing Steel Ltd. v. Director of Environmental Protection and another CACV 350 of 2003). 

58. As pointed out earlier one of the original reliefs sought by the applicant was a declaration that he is an indigenous inhabitant of Tsing Yi Hui within the meaning of section 2 the Ordinance which was abandoned by him on the day of the hearing before the judge.  I accept, as submitted by Mr Jat, that the applicant’s alleged status had serious implications for the Committee.  The Committee is a consultative body to the government in relation to the affairs and administration of the Tsing Yi district.  Village representatives of the villages of Tsing Yi district elected under the Ordinance are members of the Committee.  The relief sought by the applicant would have an impact on the membership of the Committee and its functions including the management and administration of the affairs of the villages undertaking in the district.  The applicant’s claim would also have a serious impact on whether he or other potential applicants which he claimed to be 700 in number would be entitled to enjoy the benefits of the indigenous villages and communal holdings.  This interest of the Committee is quite distinct from the interest of the Secretary.

59. By the time the hearing took place the costs relating to the Committee’s preparation and attendance of trial had already been incurred.  It would make no difference to the costs even if the applicant abandoned this particular aspect of his case.  It is true that despite the change of stand taken by the applicant the Committee still wished the matter to be dealt with by the judge.  However, this would make no impact on the costs that had already been occurred since the hearing concluded on the same day.  In the circumstances the costs order made by the judge in favour of the Committee is a correct one.  I will dismiss the applicant’s appeal on costs.

Costsof the appeal

60. In the light of my judgment I will make an order nisi that

1)	there will be no order as to the costs of appeal between the applicant and the Secretary.
2)	the applicant is to pay the Committee the costs of his appeal against the Committee on costs.

Hon Yam J :

61. I agree.

Hon Sakhrani J :

62. I agree with the judgment of Cheung JA.