LAM WAI WING v. MISS YIM SHUN YEE ADA, THE CORONER

HCAL 194/2019

[2023] HKCFI 807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 194 OF 2019

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DECISION ON COST APPLICATION

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1.  The background and facts leading to the application for judicial review as well as my decision in relation to the application are set out in my judgment dated 23 December 2022. In a nutshell, the Deceased who was a taxi driver suffered injuries during the effort of police officers, including the Applicant, to subdue him and died subsequently. There was a Death Inquest conducted in relation to the death of the Deceased, heard by a Coroner together with a jury. The jury, by a majority of 3 - 2, returned a verdict of unlawful killing.

2.  Having heard counsel who appeared at the application hearing, I granted the application for judicial review and made the following orders:

(1)  An order of Certiorari to quash the jury’s verdict of unlawful killing; and

(2)  A fresh Death Inquest be conducted before another Coroner.

3.  There was an application by the Applicant and a cost order nisi against the 1^st Interested Party was made.

4.  The 1^st Interested Party, pursuant to directions of the court, subsequently raised objection to the cost order.

5.  Parties agreed that this matter can be dealt with by way of paper disposal.

THE APPLICATION FOR JUDICIAL REVIEW

6.  The applicant was represented by Jat Sew-tong, SC, together with Ms Josephine Tjia[1]. The crux of the submission of Mr Jat, for the sake of the application for judicial review, was that in the context of the present case, as the Applicant was entitled to use reasonable force to effect lawful arrest and detention of the Deceased, the circumstances gave rise to the following issues:

(1)  whether the Applicant had used excessive force, and in this regard the jury should be directed to consider all the relevant circumstances and what the Applicant genuinely believed to be reasonably necessary; and

(2)  whether the Applicant intended to apply unlawful force to the Deceased.

7.  On this basis, he put forward the following grounds based on which the relief is sought:

(1)  The summing up of the Coroner was defective in the following aspects:

(a)  she failed to leave to the jury the issue of whether there was an unlawful act (Ground 1);

(b)  no direction has been given to the jury on whether the Applicant intended to apply unlawful force to the Deceased (Ground 2); and

(c)  no direction has been given to the jury as to how they should assess whether the force applied was reasonable (Ground 3); and

(2)  further or alternatively, the verdict of the inquest was one that no reasonable jury, properly directed, could have returned upon the evidence (Ground 4).

8.  The Coroner and the 2^nd, 3^rd, 5^th and 6^th Interested Parties indicated that they would maintain a neutral stand in this proceedings.

9.  The 1^st and 4^th Interested Parties attended the application hearing.  The 1^st Interested Party opposed the application.  Whilst the 4^th Interested Party also submitted that there were mis-directions by the Coroner, albeit the criticism was on different aspects.

10.  The 1^st Interested Party was represented by Mr Neville Sarony, KC, SC, and Ms Angel W Lau.  It was the submission of Mr Sarony that:

(1)  save for one aspect of Ground 4, namely causation, none of the other grounds had been put before the jury by the counsel of the Applicant[2] at the Inquest;

(2)  evidence in the Inquest did not oblige the Coroner to give the directions as the Applicant suggested to the jury;

(3)  her direction to the jury was in any case accurate, sufficient and apt to the circumstances as revealed by evidence, and in any case not defective nor insufficient; and

(4)  in any case, the verdict was not irrational.

11.  For the reasons I set out in the judgment, I found that the summing up of the Coroner was defective so that the verdict of the jury was unsafe.  The impugned direction amounted to a material irregularity and I did not agree that on the evidence a reasonable jury properly directed could have reached the same verdict.

THE APPLICATION FOR COSTS

12.  The court has a broad discretion in making orders as to costs.  The general rule guiding the exercise of that discretion is that the unsuccessful party will be ordered to pay the costs of the successful party.  The court has to decide whether to apply that general rule that costs follow the event, or award costs on an issue by issues basis.  The court also recognized that in several respects a different cost regime is required in the context of public law proceedings compared to other civil claims.  As Lam J[3] said in Chu Hoi Dick v Secretary for Home Affairs[4], there is a trend in the common law world to have special regard to the public interest element in the exercise of the discretion as to costs.  In any case, in exercising of the discretion in making or refusing to make an award of costs, the court should have regard to the particular circumstances of the case and retain the flexibility as justice warrant.[5]

13.  As said, in appropriate circumstances the concept of public interest ligation can be the basis for departure of the general principle governing consideration of costs.

14.  The guiding criteria of applying the public interest litigation are[6]:

(1)  a litigant has properly brought proceedings to seek guidance from the court on a point of general public importance so that the litigation is for the benefit of the community as a whole to warrant the costs of the litigation to be borne by the public purse as costs incidental to good public administration;

(2)  the judicial decision has contributed to the proper understanding of the law in question; and

(3)  the litigant has no private gain in the outcome.

15.  It has been held that, even if the criteria have been fulfilled, it does not necessarily mandate the court to make no order as to costs.  The making of costs orders involves an exercise of discretion, and the court must have regard to other relevant factors (such as the conduct of the litigants in the proceedings)  in coming to a final decision of what is just in the circumstances.[7]

16.  The 1^st Interested Party did not rely on this concept for her objection to a cost order against her.  It is, in any case, apparent that the abovesaid criteria have not been fulfilled.

17.  In my consideration, I have had regard to the following matters:

(1)  the 1^st Interested Party is the daughter of the Deceased;

(2)  what caused the need of this judicial review application was definitely not the fault of the 1^st Interest Party;

(3)  the evidence adduced in the Death Inquest, in particular that related to the Deceased and the Applicant;

(4)  the 1^st Interested Party did not seek to join the proceedings but was named as one of the six Interested Parties in the amended application which was filed after leave for application for judicial review had been granted;

(5)  when Li J granted leave for application for judicial review on 7 May 2020, the following direction, inter alia, was made: “all interested parties are invited to attend the substantive hearing.  Parties should inform this court their intention as soon as practicable”;[8]

(6)  by a letter dated 6 July 2020, the 1^st Interested Party indicated intention to attend the hearing;

(7)  on 17 October 2022, the court issued directions including: “if any of the Interested Parties intends to make submission, such submission be filed on or before 4 November 2022;

(8)  1^st Interested Party filed submission on 4 November 2022, prior to filing of the submission, she did not take any substantive step in these proceedings;

(9)  on 11 November 2022, the Applicant filed reply submission;

(10)  there was no issue pleaded against the 1^st Interested Party, the primary relief sought being an Order of Certiorari of the verdict of the jury;

(11)  the 1^st Interest Party stated that, in the absence of any representation for the Coroner, she felt incumbent to attend the hearing to assist the court;

(12)  whereas the Amended Form 86 and the Originating Summons Form 86A both seek an order for costs, Form 86A specifically prays for a costs order against the Respondent (the Coroner)  only;

(13)  the line the 1^st Interested Party took in the application proceedings[9],

(14)  the submission of the Applicant that his application was strongly opposed and substantially argued by the 1^st Interested Party;

(15)  the 1^st Interested Party was legally aided and section 19(1)  of the Legal Aid Ordinance[10] is relevant;

(16)  legal assistance has been extended to the Applicant under the Civil Service Bureau Scheme (the court was informed by the Applicant that under the Scheme the government paid the legal costs on his behalf and if costs is awarded to him the sum recovered must be surrendered to the government to meet the legal expenses incurred by the government on his behalf);

(17)  the provision of section 16C(1)(b)(ii)  of the Legal Aid Ordinance;

(18)  the Applicant accepted that as far as the legally aided period of the 1^st Interested Party is concerned, section 16C(1)(b)(ii)  of the Legal Aid Ordinance is applicable to her;

(19)  however, it is the submission of the Applicant that, as the Legal Aid Certificate was only granted to her in June 2020, any cost incurred by the Applicant before the Certificate are still recoverable against the 1^st Interested Party if a costs order is awarded in favour of the Applicant;

(20)  it has been held that the fact that one or both parties were legally aided did not alter the ordinary principles governing the court’s approach to costs, the court has to decide first what order it would have made had neither party been legally aided and then, having regard to the liability of the Director of Legal Aid under the Legal Aid Ordinance, look at the amount of the successful party’s contributions[11];

(21)  in the present case, the liability of the Director of Legal Aid created by the said section 16C(1)(b)(ii)  was in the region of $49,000;

(22)  it is the submission of the 1^st Interested Party that in the circumstances, taxation is a relatively costly and time-consuming exercise with no real benefit to anyone; and

(23)  it is her further submission that No Order as to Costs is a more appropriate and pragmatic approach to take in the circumstances of the case.

18.  I bear firmly in mind the decision as stated in sub-paragraph (20)  of the previous paragraph.  Having considered the whole relevant circumstances which are special in various aspects, having particular regard to the matters just said, by adopting a broad brush and pragmatic approach, I order that the costs order nisi be varied and instead make an order that there be No Order as to Costs.

19.  I also order that there be no costs in relation to the cost application.

20.  I further make an order that the 1^st Interested Party’s own costs to be taxed in accordance with the Legal Aid Regulations.