TANG KUM SUI v. CHUNG KOON LUNG AND OTHERS

HCAL 26/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO. 26 OF 2007

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REASONS FOR JUDGMENT

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1.  At the end of the hearing on 5 November 2007, I made the following orders:-

(a)	the petition be dismissed;
(b)	the petitioner is to pay the costs of the petition to be taxed if not agreed,

indicating that the reasons for doing so would be handed down later.  They are as follows.

2.  Further, the parties’ dispute as to the basis of taxation will be dealt with below.

3.  The petition was commenced in March 2007 pursuant to the provisions of the Village Representative Election Ordinance (Cap. 576).  In short, the petitioner complained that the 1^st and 2^nd respondents, who have been declared by the 3^rd respondent as the elected indigenous inhabitant representatives, were not eligible candidates.  His case was in gist that neither of them were “indigenous” inhabitants within the meaning of Cap. 576.

4.  On 5 October 2007, the respondents applied for the petition to be dismissed whereas, on 8 October 2007, the petitioner applied for leave to have it withdrawn.  Those applications came to be heard on 5 November 2007.

5.  By the time of that hearing, the petitioner sensibly accepted that there was no practical difference between the dismissal and withdrawal of the petition.  Taking into account the petitioner’s express concession that the petition is unlikely to succeed, and that no one has sought to be substituted as a petitioner, it is more appropriate for the petition to be dismissed.

6.  The more substantial disputes between the parties which remained were:-

(1)	whether there should be no order as to the costs of the petition (as the petitioner contended) or that the petitioner should bear those costs (as the respondents contended);
(2)	if costs are awarded against the petitioner, whether they should be taxed on indemnity basis.

These will be dealt with in turn.

7.  There are at least two relevant provisions in Cap. 576.  S. 46(7) provides:-

“	The petitioner is liable to pay the costs of the respondent if –
	(a)	the election petition is withdrawn or abandoned;
	(b)	the petition is taken to have been withdrawn under section 44(3); or
	(c)	the petitioner ceases to prosecute the petition”.

Further, r. 21(2), Village Representative (Election Petition) Rules (Cap. 576B) provides:-

“	… if it appears to the Court that –
	(a)	any costs have been caused by vexations conduct, unfounded allegations or unfounded objections on the part either of the petitioner or of the respondent; or
	(b)	any needless expenses have been incurred or caused on the part either of the petitioner or of the respondent,
	the Court may order such costs or expenses to be borne by the parties by whom those costs or expenses have been incurred or caused whether or not those parties are on the whole successful in the proceedings …”.

8.  By virtue of s. 46(7) (even if it be given an interpretation most favourable to the petitioner), the petitioner is (at least) prima facie liable to pay the costs of the petition if I were to accede to his application for leave to withdraw.

9.  Irrespective of whether s. 46(7) imposed an absolute liability, or a prima facie liability, on the petitioner’s part to pay the costs on withdrawing a petition, the liability provided for is similar to that for a litigant who seeks to withdraw an ordinary civil litigation:  see Hong Kong Civil Procedure 2007, Vol. 1, para. 21/5/8 and 21/5/11.

10.  In summary, the usual rule that costs should follow the event is clearly intended by Cap. 576 to be applicable to cases where leave to withdraw an election petition has been granted.

11.  The provisions in r. 22(2), Cap. 576B are not inconsistent with that conclusion.  That sub-rule specifically refers to:-

(a)	costs caused by “vexations conduct, unfounded allegations or unfounded objections”; and
(b)	“needless expenses”.

Those costs or expenses may be ordered against the responsible party, irrespective of whether that party has been “on the whole successful in the proceedings”.

12.  It is true r. 22(2) does not expressly state whether the party which is “on the whole successful in the proceedings” should be awarded the costs of those proceedings.  On the other hand, that sub-rule does not state that that party should not be awarded those costs either.

13.  Based on the above, I conclude that there is nothing in Cap. 576 which dispels the ordinary rule that costs should follow the event is equally applicable to costs of an election petition.  I also do not see any other valid basis for not adopting such rule in election petition proceedings.  Indeed, taking into account the matter set out in para. 18(a) below, there is good reason to adopt such rule.

14.  The petitioner did not seek to argue otherwise, and in fact accepted that the Court of Appeal has reached the same conclusion in Wong Siu Yee v. Chiang Sai Cheong, CACV 91/1996 (15 November 1996).  In this connection, I note that the late Godfrey JA (as he then was) expressly accepted that the ordinary rule as to costs in election petitions was that costs should follow the event.

15.  What the petitioner contended as matters justifying a departure from the usual rule as to costs amounted to nothing more than these:-

(1)	the respondents have not taken steps to dissuade him from commencing the petition;
(2)	further, he has been encouraged to commence the petition by their lack of position response.

16.  None of these are valid justifications for the departure contended for.  The law does not impose any general duty on the respondents to do so.

17.  As regards the basis of taxation, the relevant legal principles (which are undisputed) are:-

(1)	indemnity costs are awarded not only in cases brought with an ulterior motive, for an improper purpose, or where there was some deceptive or understand conduct on the losing party’s part;
(2)	the attributes of the parties and the character of the proceedings were not irrelevant to the exercise of the discretion to award indemnity costs;
(3)	the grounds for awarding such costs must be connected with the case and might extend to any matter relating to litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further.

See Town Planning Board v. Society for Protection of the Harbour Ltd. (No. 2) (2004) 7 HKCFAR 114.

18.  Matters which the respondents relied on in support of their case of indemnity costs were:-

(a)	the petition falls within the public law domain, and may have consequences beyond the mere rights and interests of the immediate litigants (such as proper public administration and the proper representation of the electorate);
(b)	the petitioner’s case is based largely on hearsay evidence which is either incapable of proper proof, or unable to be proved (as demonstrated by his recent concession);
(c)	the part of his case which is not based on hearsay evidence is premised on conjectures rather than proper or reasonable inferences drawn from proven or undisputed facts;
(d)	at the very least, the petitioner has failed to properly investigate the important facts and matters before commencing the proceedings.

19.  I agree with the respondents that the matters set out above, taken together, are grave enough to warrant the exercise of my discretion to order the costs to be taxed (if not agreed) on an indemnity basis and I so order.