CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. PRESIDENT OF THE LEGISLATIVE COUNCIL

HCAL 226/2016 & HCMP 3378/2016
[2018] HKCFI 2236

HCAL 226/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 226 OF 2016

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AND

HCMP 3378/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO 3378 OF 2016

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D E C I S I O N   O N   C O S T S

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A.  Introduction

1.  By a judgment dated 14 July 2017 (“the Judgment”), this court allowed the plaintiffs’ claims against Mr Yiu and granted the reliefs as sought.[1] The court further ordered on a nisi basis that costs should follow the event.[2]

2.  By way of summons filed on 1 August 2017, Mr Yiu asks this court to vary the costs order nisi to the extent that there should be no order as to costs.  Alternatively, as submitted in the reply written submissions, Mr Yiu asks that he should only bear part of the costs of these two actions against him.

3.  The plaintiffs oppose the application and submit that the costs order nisi should be maintained and made absolute.

4.  The parties have agreed to dispose of this costs variation application on paper, and have since filed their written submissions for that purpose.

5.  This is the decision on the costs variation application.  This decision should be read together with the Judgment.  For convenience, the abbreviations used in the Judgment will be adopted in this decision.

B.  Discussion

6.  In support of the costs variation application, Ms Eu SC’s submissions can be summarized as follows.

7.  The principles relating to costs are not in dispute. Costs is in the wide discretion of the court.  It is now well established that “costs should follow the event” is only a starting position to be adopted by the court in considering costs.  The court should however be prepared to depart from it to reach a fair and just costs order after taking into account all circumstances of the case.  See: section 52A of the High Court Ordinance (Cap 4); Order 62, rule 3(2) and Wong Kam Tong v Tin Shing Court, Yuen Long (IO) (No 2) [2012] 2 HKLRD 1128 at paragraphs 11 ‑ 13, per Cheung JA; Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841 at paragraph 17(1), (3) and (8) (in the context of judicial review).

8.  Relevant to the present case, all circumstances include considerations such as the conduct of the parties as to whether it is reasonable for them to raise or resist a claim, the manner in which a party has defended his case and his conduct before the proceedings.  See: Order 62, rule 5(2)(a) to (d).

9.  Applying these principles, Ms Eu says the court should take into account the following special circumstances in the present proceedings when considering what is a just and fair costs order:

(1) Mr Yiu’s conduct by inserting the Extra Words in the LegCo Oath was much “milder” than the way the oath was taken by some other members-elect in the past.

(2) Mr Yiu’s own innocent explanations (which were based on past practices allowed by the previous Clerk or President) as to why he believed that (a) it would not invalidate the oath-taking by adding the Extra Words at the end of the oath, or (b) at the least, he would be given a second chance to retake the LegCo Oath.  Further, in the present case, by way of the President’s Ruling, he was indeed given a second chance to retake the LegCo Oath, which Mr Yiu did properly.  Ms Eu submits that although it has now been decided in the Judgment that Mr Yiu’s said subjective intention is not relevant to the objective question of whether Mr Yiu declined or neglected to take the LegCo Oath for the purpose of the ODO, this is relevant to the court’s exercise of discretion as to costs.

(3) It was reasonable for Mr Yiu to defend the actions as:

(a) He was elected to be a LegCo member by his electorate and he had every intention to carry out that duty.

(b) In the premises, there is a public interest perspective for him to contest the actions seeking to defend his LegCo member qualification for his electorate.

(c) It was reasonable for him to be of the view that he could successfully defend the actions because past LegCo Oath taking incidents showed that the way he took the LegCo Oath would not invalidate it or he would at the least be given a second chance to retake it.  The fact was he did retake the LegCo Oath as permitted and accepted by the President.

(4) The relevant law in this respect, in particular on the objective test as finally applied by the court in the Judgment, was only made clear and provided by way of the Interpretation, which was issued after (but applied respectively) Mr Yiu had taken the LegCo Oath in the way he did.  It is therefore unjust to require him to bear the costs of defending the actions.

10.  As I understand it, there are two principal bases underlying these submissions.

11.  First, past practices in the LegCo show that members-elect who took the LegCo Oath by adding other sentences or words before, in the middle and after the text of the LegCo Oath had not been ruled by the previous Clerk or the President to be invalid, or at the least, some of those members were permitted to retake the oath.  In the premises, Mr Yiu reasonably believed that what he did was permissible and would not invalidate his oath-taking.  At the least, he would be allowed to retake the LegCo Oath.  This is particularly so when Mr Yiu’s challenged conduct in taking the oath must be considered to be “mild” when compared with the other more extreme oath-taking conducts permitted by the Clerk and President in the past.

12.  In the premises, it was reasonable, and indeed in the public interest as an elected member of the LegCo, for Mr Yiu to defend the actions.

13.  Second, the Interpretation only came after the subject oath‑taking events.  Insofar as the plaintiffs had to rely on the Interpretation to support their submissions against Mr Yiu (and the court in accepting them eventually), it would not be fair and just to now require Mr Yiu to bear the costs.  As at the time of the present proceedings, it must be reasonably open to him to defend the actions on the law regarding the oath taking requirements under the ODO as construed even in the context of BL104 and the Interpretation.  This is particularly so since Mr Yiu’s conduct in taking the LegCo Oath was very different from the challenged conducts considered in the CA Judgment and the CFI Judgment,[3] which were the first cases considering the Interpretation.

14.  Taking the second principal basis first, I am not convinced that it should affect the costs consideration.  This is so since, as I have observed in the Judgment at paragraphs 29, 30, 88 - 92, 110, 212 and 216 ‑ 217, with or without the Interpretation, the court would arrive at the same conclusion against Mr Yiu by applying common law in relation to the Exact Form and Content Requirement and the objectivity test.

15.  In relation to the first principal basis, as I have explained in the Judgment, since Hartmann J’s judgment in Leung Kwok Hung,[4] it is already clear that adding words or messages to the content of the LegCo Oath amounts to changing both the form and content of the LegCo Oath, and will fall foul of the statutory requirements prescribing the LegCo Oath under the ODO.  In the premises, objectively, it should be reasonably clear to Mr Yiu, whether before taking the LegCo Oath or when faced with the actions herein, that what he did would not be regarded to be in compliance with the requirements.  See: paragraphs 209 - 210 of the Judgment.

16.  Hence, the only “excuses” that Mr Yiu could rely on for the present purposes in relation to costs are that:

(1) The past practices and rulings of the former President and Clerk on more extreme cases had given him reasonable basis to believe that either his conduct would be permitted or he would be given a second chance to retake the LegCo Oath.  That was why he did what he did.

(2) Further, the President’s Ruling itself in the present case further confirmed Mr Yiu’s belief that he would be allowed to retake the LegCo Oath.

17.  In relation to these, it must be emphasized again this court has concluded in the Judgment that these matters are irrelevant to the determination of the question of whether objectively Mr Yiu refused or neglected to take the LegCo Oath when requested to do so under the ODO.  As I have explained at paragraphs 204, 205, 212, 213, 226 and 227 of the Judgment, under the objective test, it is not necessary to show that the oath taker, in taking the oath, specifically intended to break the law relevant to oath taking and intended to lose his seat by doing so.  It is sufficient to show that the oath taker intended to adopt a particular way, conduct or manner to take the LegCo Oath, and that particular way, conduct and manner of taking the oath objectively assessed do not comply with the relevant legal requirements.  Applying this objective test, the court then concluded that Mr Yiu declined or neglected to take the LegCo Oath for the purpose of the ODO as (a) objectively, he intended to add the Extra Words in the way as he did; and (b) the Extra Words so added, objectively viewed, altered the form or substance of the LegCo Oath as prescribed by the statute.

18.  Ms Eu in this costs variation application is not seeking to challenge the above conclusion in the Judgment on the law regarding the elements of the objective test and the finding against Mr Yiu.

19.  However, Ms Eu submits that, solely for the purpose of costs, the above matters could and should be taken into account as relevant considerations as part of the particular circumstances of the present case.

20.  I agree.

21.  As contended by Ms Eu, in the present case, given the particularly milder way in which Mr Yiu had added the Extra Words when compared with the ways as adopted by some other previous LegCo members-elect in taking the LegCo Oath,[5] and which conducts had been “allowed” by the previous Clerk or President, it was reasonably understandable as to why Mr Yiu would be under the belief (albeit mistaken) that he had a reasonable chance to defend these actions.  In this respect, I also agree that, given this reasonably understandable position, insofar as Mr Yiu is concerned as a member-elect of the LegCo, there was also a public interest element for him to defend the matters for his electorate,[6] particularly when the President’s Ruling (consistent with the past rulings) had allowed him to retake the LegCo Oath.

22.  Mr Yu SC for the plaintiffs however contends that these actions against Mr Yiu were necessitated because he had engaged in unconstitutional and unlawful oath-taking as held in the Judgment.  There is therefore no basis for him to now say it was in the public interest to defend the actions, as his electorate would not have intended him to unlawfully take the LegCo Oath.  Leading counsel also emphasizes that the previous rulings by the Clerk and the President are not decisions of the court and therefore do not represent the law relating to oath taking.  In the premises, it would not be reasonable for Mr Yiu to rely on those previous cases and rulings to form the view that, as a matter of law, he would be given a “second chance” to retake the LegCo Oath.  Mr Yiu decided to take a gamble, and he should not be immune from costs liability.

23.  With respect, I am not persuaded.

24.  It should first be noted that, Mr Yiu in defending these actions was effectively seeking to defend and uphold the President’s Ruling in permitting him to retake the LegCo Oath.  In particular, as pointed out by Ms Eu, the President himself had remained neutral in these proceedings and did not seek to defend the President’s Ruling.  Second, I think it is fair to say that, in the absence of any decided authorities, it was not unreasonable for Mr Yiu as a member-elect of the LegCo to consider those previous cases and previous rulings by the Clerk and President to guide and assess his position in defending these proceedings.

25.  As I have explained above, by reference to those previous and present rulings of the President, it was reasonably understandable in those circumstances why Mr Yiu was led to mistakenly believe that, at the least, he should be allowed a second chance to retake the LegCo Oath under the law.  This is particularly so given Mr Yiu’s relatively “milder” way in inserting the Extra Words in taking the oath when compared with those previous cases.  It is therefore also not unreasonable why Mr Yiu was led to the mistaken belief that he could successfully defend these actions by seeking effectively to uphold the President’s Ruling.  In this respect, it is pertinent to note that the President had the benefit of legal advice in making the rulings, and that the Government had not in the past sought to challenge those previous rulings of the President and the Clerk.

26.  When all these are considered together, given the particular circumstances pertinent to Mr Yiu’s subject conduct, his understandable mistaken belief that he should be at the least allowed to retake the LegCo Oath, the public interest perspective in these proceedings, and the fact that the plaintiffs had not in the past sought to challenge the Clerk or the President’s similar previous rulings, I agree that it would not be fair and just in all the circumstances to require him to bear the costs of these actions.

C.  Conclusion

27.  For the above reasons, I would vary the costs order nisi to no order as to costs.  The costs of this application shall be treated as part of the costs of the proceedings.