LAM TAT MING v. THE CHIEF EXECUTIVE OF THE HKSAR AND ANOTHER

CACV 259/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 259 OF 2010

(ON APPEAL FROM HCAL NO. 121 OF 2009)

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BETWEEN

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DECISION ON COSTS

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Hon Tang VP (giving the decision on costs of the Court):

1.  The applicant, a retired police inspector, was refused a pension under section 27(2)(a) of the Pension Benefits Ordinance (Cap 99) ("PBO") by the Secretary for the Civil Service ("the Secretary"). His petition against the Secretary's decision under section 29A(6) of PBO was also unsuccessful.

2.  However, his challenge to those decisions by judicial review succeeded before Reyes J who granted an order of certiorari quashing the decisions.  The applicant was also granted a declaration that the Secretary's decision of section 27(2) PBO contravened Articles 10 and 11 of the Hong Kong Bill of Rights and was unconstitutional.

3.  On appeal, for reasons given in our judgment of 22 December 2011, we have set aside the declaration granted by the learned judge as well as his order quashing the decision of the Secretary.  However, we have remitted the applicant's petition to the Chief Executive for further consideration.  We also expressed the view that the Chief Executive should consider requiring the Panel to advise him on the petition pursuant to section 29A(7) PBO and that before tendering such advice the Panel should hold an oral hearing where oral evidence with cross-examination may take place.

4.  We are now concerned with the costs of the appeal.

5.  Mr McCoy, SC, for Mr Lam, submitted that the appropriate cost order for the appeal is that each party should bear its own costs of the appeal.  He also submitted that the cost order made by Reyes J that the respondents should pay the costs of the Mr Lam should not be disturbed.

6.  On the other hand, the respondents submitted that Mr Lam should pay the Secretary's costs in this court as well as below; but that as between Mr Lam and the Chief Executive, each party should bear their own costs both here and below.

7.  Throughout the Chief Executive and the Secretary have been represented by the same team of lawyers and I believe their costs should properly be regarded as a single amount. 

8.  Given the outcome of the appeal, I believe each party should pay its own costs, but that any previous order for costs made in the appeal should stand.

9.  As for the costs before Reyes J, on the basis of our judgment, Mr Lam should have lost viz a viz the Secretary but substantially succeeded against the Chief Executive.  That being the case, it would not be right that the cost order below should be left wholly undisturbed.  I believe he should be given two-thirds of his costs below, which would sufficiently reflect his substantial victory as well as the fact that he was unsuccessful viz a viz the Secretary. 

10.  So the cost order that I would make is that there be no order as to costs in this court and that Mr Lam should have two-thirds of his costs below.