WONG TAK CHUEN JOE v. WONG TAT TUNG AND ANOTHER

HCAL 6/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 6 OF 2012

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JUDGMENT ON COSTS

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1.  I will order the Petitioner to pay the costs of the 2^nd Respondent and the Intervener in these proceedings on a party-to-party basis. 

2.  As regards the costs of the 1^st Respondent, I order the Petitioner to pay the 1^st Respondent’s costs in these proceedings on a party-to-party basis up to and including the hearing on 26 September, and thereafter costs will have to be paid by the Petitioner to the 1^st Respondent on an indemnity basis.

3.  In my view, the Petitioner should have considered applying for withdrawal immediately after the hearing on 26 September because it is tolerably clear by then that this Petition cannot succeed, bearing in mind what are the grounds provided for under section 49 of the District Council Ordinance for questioning the return in an election.

4.  Even if there were some outstanding cases: the 29 cases for which investigation by the ICAC had not been completed at that stage, that would not be sufficient ground for continuing with this Election Petition.

5.  The proper course, if there are still suspicions with regard to those outstanding cases, is to leave it in the hands of the ICAC to investigate.  If there are sufficient materials for prosecution it is for the ICAC to prosecute.  It is not for the Petitioner to try to continue with a hopeless Petition simply on the ground that there are these 29 outstanding cases which, at the end of the day, would have no bearing whatsoever with regard to the outcome of the Election Petition.

6.  I think it is time that a Petitioner should learn that an Election Petition focuses on the question of whether the result of an Election can be questioned and the Petitioner should act responsibly and also in accordance with the spirit of Order 1A in the Rules of the High Court.

7.  In assessing and reviewing whatever evidence comes to light after the commencement of proceedings, if there is simply not sufficient material to continue with the proceedings, the proper thing to do is to withdraw once one comes to a view that continuing with the Petition would not lead to the overturning of the result of the Election.  It is important that Election result should not be questioned lightly when there is simply not sufficient material to support a Petition because whenever there is an Election Petition hanging in the air that would cast some doubt over the authority of the one who has been returned.  It is not in the interest of the public to allow a hopeless Election Petition to continue.

8.  Since in the present case I am of the view that the Petitioner should have clearly come to a view that his Election Petition cannot succeed after what has been highlighted at the hearing on 26 September, the further costs incurred after that day should be awarded on indemnity basis against the petition.