LAI CHEUK YIN v. MARGARET CHEUNG WAI FONG AND ANOTHER

CACV 515/2025, [2026] HKCA 1007

On Appeal From [2025] HKCFI 2563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 515 OF 2025

(ON APPEAL FROM HCAL NO. 631 OF 2025)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

I.  Application for security for costs of the appeal

1.  This is the 1^st and 2^nd putative respondents’ application for security for costs of the applicant’s appeal against the judgment given by Coleman J on 4 July 2025 (‘the Judgment’) dismissing the applicant’s application for leave to apply for judicial review by a Form 86 dated 12 March 2025. The Judge conducted a rolled‑up hearing of the application.

2.  Having read the evidence and submissions filed by the parties, we consider that it is appropriate to determine the present application on paper without an oral hearing pursuant to Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A.

II.  Background

3.  The applicant was a student of Lingnan University (‘the University’). He wished to stand for election as a student member to serve in the Court, the Council and the Senate (‘the Elections’) of the University in the 2024/25 academic year. He was disqualified to stand as a candidate by the 1^st putative respondent who was the Election Officer of the Elections whose decision was confirmed by the Investigating Panel of the 2^nd putative respondent. The decision to disqualify was that the applicant had breached Clause 7.2 of the ‘Regulations Governing the Election of Eligible Students from among themselves for Appointment to the Court or the Council’ (‘the Regulations’) of the University relating to the election to the Court and Council in that he had carried out promotional activities for his candidacy beyond those permitted by Clause 7.2. The election to the Senate was governed by a different set of rules. Their terms are almost identical to the Regulations save for the name ‘Senate’ is being used as appropriate. The background of the case is set out in the Judgment. We will not repeat it here.

III.  The Judge’s Decision

4.  The Judge considered the six intended grounds of review namely,

Ground 1:  Procedural Impropriety – violation of right to be heard and insufficient inquiry;

Ground 2:  Illegality – ultra vires;

Ground 3:  Illegality – misinterpretation and misapplication of regulations or policies;

Ground 4:  Illegality – disproportionate restriction of freedom of expression;

Ground 5:  Illegality – failure to take into account relevant considerations;

Ground 6:  Irrationality and Wednesbury unreasonableness.

5.  The Judge held all six grounds failed. He held :

‘ 111. At the conclusion of a rolled-up hearing, it may not be of any particular interest as to whether leave to apply for judicial review is granted for any individual Ground, if ultimately no ground is successful. Nevertheless, I would accept that Ground 3 was reasonably arguable.

112. However, in light of the remainder of my conclusions, the Applicant’s application for leave to apply for judicial review is dismissed.

6.  The Judge’s reasons for rejecting Grounds 1, 3 and 5, which are most relevant to the applicant’s grounds of appeal raised, may be summarised as follows :

1)  In respect of Ground 3 (which was dealt with jointly with Ground 2), the Judge considered that the Elections by nature are not equivalent to any form of election of public official or representative, and there are reasonable justifications from the context and purposes of the Regulations to interpret Clause 7.2 as providing an exclusive list of promotion channels to ensure that there would be some degree of oversight or control over the promotional activities by the candidates, otherwise it would be impossible for the Election Officer to discharge the duty imposed under Clause 4.1 to ensure the fair conduct of the elections under the Regulations to both the candidates and also to the electorate. The Judge considered it unnecessary to distinguish between public and private promotion even in view of the applicant’s contention of the difference in the Election Officer’s approach in handling the complaints against the applicant and against another candidate, but took the view that the distinction drawn was between the promotion activities conducted through the channels permitted by Clause 7.2 which the Election Officer could be expected to have knowledge and oversight, and those conducted by any other channels which she could not be expected to have knowledge and oversight. The Judge also considered that by virtue of Clause 4.1, there should be some appropriate deference afforded to the Election Officer’s interpretation of the Regulations, and did not consider the Election Officer had misinterpreted the Regulations.

2)  In respect of Ground 1, the Judge accepted that the purpose of the Election Officer’s meeting with the applicant was simply to notify him of the decision already made by her to disqualify him from the Elections. The Judge held that there was no material factual dispute as to the circumstances leading to his disqualification decided by the Election Officer, and the underlying facts on which the disqualification was based were also known to the applicant. The Judge considered the explanations, which the applicant said he would have given had he been given an opportunity to be heard at the meeting, were irrelevant, or they could not have persuaded the Election Officer to reach a different conclusion than that had been made by her.

3)  In respect of Ground 5, the Judge held that the matters raised by the applicant to impugn the Council’s Decision were the points which he had run in his complaint to the Council even though they were not expressly referred to in the Investigation Report or the Council’s Decision. In any event, the Judge also held that they were merely a repetition of his arguments raised under Grounds 1, 3 and 4 which had all been rejected by him.

IV.  The intended appeal

7.  The intended grounds of appeal are summarised as follows :

1)  The Judge erred in law and fact to conclude under Ground 3 that the Election Officer and the Council did not misinterpret or misapply the Regulations, in that the Judge ought to have found that Clause 7.2 does not impose an exclusive list of promotion channels, and at least does not prohibit all other lawful means for the candidates to promote, notwithstanding those means are not expressly permitted by the Regulations;

2)  The Judge erred in refusing to grant leave to apply for judicial review when the Judge accepted that Ground 3 was reasonably arguable;

3)  The Judge erred in law and fact in concluding under Ground 1 that there was no procedural impropriety by holding that the Election Officer would have reached the same conclusion which she had made in disqualifying the applicant had she given the applicant a right to be heard, and by overlooking the importance of procedural fairness in the determining the applicant’s substantive rights, the purposes of the Regulations to ensure oversight over the contents of a candidate’s promotion, as well as the integrity and credibility of the electoral process.

4)  As the Judge rejected Ground 5 solely because his rejection of Grounds 1 and 3, and the Judge ought to have granted leave on Ground 5 in view of the arguments showing Grounds 1 and 3 have merits. It is also contended that the Judge erred in concluding that the Investigation Panel and the Council must have considered the arguments raised under Grounds 1 and 3 in dealing with his complaint against the Election Officer’s Decision.

V.  Grounds for security for costs

8.  The 1^st and 2^nd putative respondents applied for security for costs of the appeal in the sum of $1,702,630 essentially on three grounds :

1)  the applicant is impecunious;

2)  the appeal is hopeless or considered to be arguable at most, which in any event will not suffice to operate as a countervailing factor in his favour in the present application; and

3)  the appeal is academic.

9.  The applicant’s objections to the application are as follows :

1)  there are strong merits in his appeal;

2)  his appeal is not academic but raises substantial points of argument or questions of great general or public importance, which render it unjust to order security; and

3)  the amount of security sought is excessive.

10.  The applicant also complains in his written submissions that the putative respondents have acted in breach of the directions made by the Registrar of Civil Appeal on 13 October 2025 (‘the Registrar’s Directions’) by filing the Affidavit in Reply without leave of the Court, and also by belatedly lodging their written submissions and application bundle on 17 November 2025 without first seeking an extension of time. The applicant asks that the Affidavit in Reply be expunged from the application bundle and from the Court’s record.

VI.  Our view

1)  Breach by the putative respondents

11.  The applicant’s complaint about the putative respondents’ breach of the Registrar’s Directions is without merits. We will proceed to consider the substantial issue in this application.

2)  Special circumstances : Impecuniosity of the applicant

12.  Under Order 59, rule 10(5) of the Rules of the High Court, the Court of Appeal may, in special circumstances, order security to be given for the costs of an appeal as may be just. The principles for the exercise of this jurisdiction are well settled. Special circumstances include cases of insolvency or impecuniosity, and difficulty or expense in enforcing costs orders. However, even in such case, the Court retains a discretion not to order security if the appellant can demonstrate sufficient countervailing factors which would militate against the making of an order of security for costs (see Hong Kong Civil Procedure 2026, Vol 1, [59/10/26], [59/10/27] and [59/10/32]).

13.  In contending that the applicant is or is likely to be impecunious, the putative respondents rely, amongst other things, that he graduated from his full-time undergraduate study at the University on 31 August 2025, and it is highly unlikely that he would have accumulated sufficient funds, whether by any gainful employment or otherwise, to support his pursuit of the appeal, much less to pay the costs of the proceedings below. From a property search conducted by the putative respondents against the Chinese and English names of the applicant with the returned results which appears to cover up to February 2023, there is nothing substantive from the search results to suggest that the applicant owns any landed property in his own name.

14.  The applicant has not disputed that he lacks sufficient means to pay security if ordered. He stated in his Affirmation that he is from a humble family and should he be ordered to pay security, he would not be able to do so within 14 days from the date of the order, whether from his own resources or from his family’s resources.

15.  We are satisfied that there is credible and sufficient evidence produced by the putative respondents that they will likely encounter difficulty, undue delay or undue expenses in enforcing any order for costs of the appeal which may be made against the applicant. The putative respondents have made out a case of special circumstances for seeking security for costs of the appeal from the applicant.

3)  Merits of the appeal

16.  The next question for consideration is whether there are any sufficient countervailing factors which would militate against an order of security for costs being made against the applicant. This is not the occasion for an in-depth consideration of the merits of the appeal, which will have to be fully ventilated at the substantive hearing of the appeal. It suffices for us to say that, having considered the grounds of appeal in the applicant’s Notice of Appeal, we consider that the applicant has, at best, an arguable appeal, but the merits are far short of being sufficient countervailing factors to militate against the making of an order of security for costs in the present case.

4)  Real and substantial issues in the appeal

17.  The applicant contends that his appeal is not academic, but involve substantial points of argument, which ought to be heard by the Court of Appeal.

18.  First, the applicant submits that although he has graduated from the University, that does not mean he could not join a by-election to be held, and even if he eventually did not join the by-election, the results of the Election would be quashed, the appointments of the two other students as the elected students members would be revoked should he succeed on appeal and he should be granted the relief sought in his intended judicial review.

19.  The submission plainly has no validity. It is clear from the evidence that the other two students have completed the respective terms of office by now. Also, there is no submission from the applicant as to the basis for him as a graduate to run in a by-election, if any, which is to elect an undergraduate student to take up the role of student member in the Court, the Council or the Senate.

20.  Second, the applicant submits that the decision of this appeal, if heard, has practical and important implications to the future conduct of the Elections to the Court and to the Council, which will continue to be governed by the Regulations, as well as the future conduct of the elections at other tertiary institutions in Hong Kong. The applicant submits that his appeal at least has important implications to the issue of whether candidates in the elections at tertiary institutions in Hong Kong should be given an opportunity to be heard before being disqualified from the election.

21.  We do not consider that there is any substantial basis in the present case to suggest that the results of the appeal will have important implications to the elections in other universities or tertiary institutions in Hong Kong. As rightly pointed out by the putative respondents, there are no submissions from the applicant to show how the rules governing the election of students to the governing bodies of other university in Hong Kong are the same as or materially similar to those governing any of the Elections in the present case.

22.  Counsel for the applicant refers to 建巧投資有限公司對韓國正, CACV 231/2010, (unreported, 10 December 2010), and Kwok Cheuk Kin v Director of Lands and Others (2021) 24 HKCFAR 220 and argued that even if the appeal is considered academic, this Court should not exercise its discretion to dismiss the present application such that the appeal can be heard and determined substantively. In our view, these cases are plainly distinguishable from the present case on facts, and they offer nothing of substance to the applicant in opposing the present application.

23.  In the present case, although we accept that the findings by the Court in dealing with the appeal may likely have an impact on the future conduct of elections of the University, we are not satisfied that this raises any questions or great general or public importance or otherwise operate as a countervailing factor in favour of the applicant to oppose the present application.

24.  We also do not accept that the Court should exercise the discretion in his favour in the present case, as such discretion should not be exercised lightly, and the Court should only do so where there is good reason in public interest to do so. Insofar as a security for costs application is concerned, we do not consider there is sufficient public interest involved in the appeal coupled with a sufficiently good chance of success (which we have rejected above) to justify the putative respondents being subjected to the injustice of having to bear their own costs even if they successfully resist the appeal, especially as they are either an officer or an executive body of a publicly-funded university.

25.  It is inherent in an order of security for costs made against an impecunious appellant that the order may operate to prevent the appellant from pursuing an appeal. If it can be shown that the application is made with a view to stifling a reasonably arguable appeal, it may properly lead the Court to conclude that the granting of security for costs will or may result in the denial of justice to the appellant: Gurdas Sabhagchand Choithramani v The Hongkong and Shanghai Banking Corporation Ltd [2025] HKCA 921, at [18]. We do not consider this to be the position in the present case. The confirmation by Counsel for the applicant in his written submissions that the legal team for the applicant will act on a pro bono basis in this appeal further militate against the risk of stifling the appeal.

5)  Quantum of security

26.  The putative respondents’ request for $1,702,630 is in respect of their estimated legal costs for handling the appeal, the applicant’s request to have the appeal heard urgently (previously refused by Chow JA), and the present application.

27.  The applicant contends that the costs below were only $1.5 million and the costs of the appeal should not be higher than the costs below. It is plain that the $3.2 million referred to by the putative respondents is the costs below. We are of the view the $1.7 million (which includes fees for two counsel at $900,000) sought in the present application is excessive. The appropriate sum is $800,000 inclusive of counsel fee.

6)  Orders

28.  We allow the 1^st and 2^nd putative respondents’ application for security for costs, and make the following orders :

(1)  The applicant do pay into Court the sum of $800,000 as security for the putative respondents’ costs of the appeal and the present application within 28 days.

(2)  Until such payment into Court be made and notice thereof given by the applicant to the Registrar of Civil Appeals and to the solicitors for the putative respondents, all proceedings in the appeal be stayed.

(3)  In default of making such payment into Court within the time as stated, and upon the solicitors for the putative respondents certifying such default to the Registrar of Civil Appeals, the appeal will stand dismissed without further order of the Court with costs of the appeal to be paid by the applicant to the putative respondents, such costs to be taxed if not agreed.

29.  We further order the applicant to pay the putative respondents’ costs of the present application which are summarily assessed at $200,000.