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

HCAL 226/2016 & HCMP 3378/2016
[2019] HKCFI 3164

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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(heard together)

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D E C I S I O N

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A.  Introduction

1.  By its decision dated 4 October 2018 (“the Decision”), this court allowed Mr Yiu’s application and varied the costs order nisi[1] given in its substantive judgment dated 14 July 2017 (“the Judgment”) to no order as to costs.   In coming to that conclusion, the court effectively concluded that it was not fair and just in all the circumstances to require Mr Yiu to bear the costs as it was reasonable for him to resist the applicants’ applications in the substantive proceedings.

2.  By way of two summonses both dated 18 October 2018, the applicants under HCAL 226/2016 and the plaintiff under HCMP 3378/2016 both ask for leave to appeal against the Decision to the Court of Appeal.   For convenience, the applicants and the plaintiff are collectively referred to as “the applicants” in this decision.

3.  The court has directed that these leave applications be dealt with on paper. The parties have since filed their respective written submissions, which include the Statement of the applicants in support of the applications filed together with the summonses.

4.  This decision should be read together with the Decision and the Judgment. Unless the context otherwise requires, I would adopt the abbreviations used in the Decision and the Judgment in this decision.

B.   This leave to appeal application

B1.  Applicable principles

5.  There is no dispute on the principles applicable to the determination of whether leave to appeal against a costs decision should be granted.  For the court to grant leave to the applicants in these applications:

(1)  They must show there is a reasonable prospect of success in the intended appeals: s 14AA(4)(a) of the High Court Ordinance (Cap 4)[2] and Hong Kong White Book, para 59/2A/4; and

(2)  In this respect, given that costs is a matter for the court’s wide discretion, the Court of Appeal in an appeal would only interfere the Decision if the applicants can show that this court has exercised its discretion by applying the wrong principle, it has taken into account irrelevant considerations, has failed to take into account relevant considerations, and/or that the exercise is “demonstrably flawed”, “plainly wrong” or “palpably erroneous”: Chan Shun Kei trading as Chan Shun Kei Construction Works v Hong Kong Construction (Hong Kong) Ltd (formerly known as Hong Kong Construction (Holdings) Ltd (unrep., CACV 192/2014, 7 March 2016).

B2.  Proposed grounds of appeal

6.  In the present applications, the applicants seek to contend under the proposed grounds of appeal that this court has either erred in principle and/or is plainly wrong in coming to the conclusion that, in all the circumstances of his case, it was reasonable for Mr Yiu defend the applicants’ substantive proceedings against him.  This is so as[3]:

(1)  In coming into this conclusion, the court has taken into account four factors (the “Four Factors”), respectively (a) the oath-taking conduct of Mr Yiu in inserting the extra words in the LegCo Oath was much “milder” than the other members-elect in the past; (b) Mr Yiu’s understandable mistaken belief that he should be at the least be allowed to retake the LegCo Oath based on the best practices allowed by the former Clerk or President; (c) there was public interest for Mr Yiu to defend the matters as an elected member, and (d) the Government had not in the past sought to challenge the previous rulings of the Clerk and the President. 

(2)  However, the Four Factors are irrelevant considerations to the question of costs.  Hence, the court in exercising its discretion erred in law by taking into account irrelevant matters. 

(3)  The court also erred in law in failing to apply the public interest exception (“PIL Exception”) criteria to consider the above public interest factor (ie., subparagraph (1)(c) above) relied upon by Mr Yiu in seeking to justify the reasonableness of defending the actions.

(4)  Further, the court has in any event failed to take into account other relevant factors (“the Other Relevant Factors”) in considering costs. These relevant factors are: (a) the applicants have succeeded in these proceedings, (b) there is no evidence that the applicants have acted unreasonably in the conduct or pursuit of these proceedings, (c) it was necessary for these proceedings to be taken out given Mr Yiu had engaged in unconstitutional and unlawful oath-taking, (d) Mr Yiu in unlawful oath-taking and defended the unlawful decision of the President out of his self-interest, as his office and remuneration were at stake, (e) Mr Yiu did not remain neutral in the proceedings but fought them vigorously.

(5)  Alternatively, even if the Four Factors are relevant and the court has also considered the Other Relevant Factors, the Court is plainly wrong in its exercise of discretion in giving overwhelming weight to the Four Factors when compared with the Other Relevant Factors.  

(6)  This is particularly so as the court has either erred in fact in failing to consider, or has given too little weight to (a) the intentional and defiant nature of Mr Yiu’s oath-taking conduct, (b) the fact that the law on proper oath-taking was made clear at the latest at the time when Mr Yiu had to consider whether to defend the actions[4], (c) the applicants had a constitutional duty to challenge Mr Yiu’s unlawful oath-taking conduct in instituting the actions against him, and (d) there were already Government-launched proceedings on foot prior to the issuing of the present proceedings against Mr Yiu.  These matters show overwhelmingly that, contrary to the court’s conclusion in the Decision, it could not have been reasonable for Mr Yiu, after having the benefit of legal advice, to genuinely believe that he was justified in defending the proceedings.

B3.  Discussion

7.  I do not think any of the above proposed grounds of appeal has a reasonable prospect of success.  I will explain why.

8.  In relation to the contention that the Four Factors are irrelevant to the consideration of costs, Mr Mok SC (together with Mr Jenkin Suen) for the applicants submit essentially that these factors in principle apply equally to the three other oath takers[5] whose oath-taking was similarly successfully challenged by the applicants in the other cases heard together with Mr Yiu’s case.   In those other cases, the court has ordered costs against these other oath-takers in favour of the applicants.   In the premises, the Four Factors are clearly irrelevant to the costs consideration, and the court has wrongly taken them into account insofar as the Decision is concerned.  

9.  For the same reason, Mr Mok further argues that even if these factors were relevant to the consideration, the court’s exercise of discretion in relation to Mr Yiu in the Decision is plainly wrong, as this was exercised inconsistently with the other three cases.

10.  With respect, there are no merits in these contentions which are based on a comparison with the costs order nisi made in the other three cases:

(1)  First, the court made the same costs order nisi in favour of the applicants in all the four cases (including Mr Yiu’s case) in the Judgment.  Only Mr Yiu applied to vary it, which the court allowed by way of the Decision after considering the submissions.  The other three oath-takers did not so apply for variation. In the premises, it is wrong in principle for the applicants to now seek to compare the costs order nisi made in the other three cases with the varied costs order in Mr Yiu’s case based on an argument of consistency.

(2)  Second, and more importantly, although the Four Factors apply in principle equally to the other three cases, they must be considered in the particular facts and circumstances of each of the cases to determine whether, in the exercise of discretion under all the circumstances, it was just and fair to order costs against a particular oath taker.  

(3)  As repeatedly pointed out in the Decision[6], this court when applying these factors has paid specific regard to the particular fact found by the court that the way Mr Yiu had varied the content of the LegCo Oath was in a particularly milder way which, objectively viewed, had reasonably led to Mr Yiu’s understandable mistaken belief that he could successfully defend the applicants’ challenge by seeking to uphold the President’s Ruling.

(4)  This particular fact as found by the court clearly distinguishes Mr Yiu’s case from the other three cases when applying the Four Factors in considering whether it was just and fair to order costs against Mr Yiu in contrast with the other oath-takers.

11.  In the premises, I do not see any prospect of success in the grounds of appeal that the Four Factors are irrelevant to the consideration of costs, or in any event it was plainly wrong for the court to exercise the discretion in favour of Mr Yiu in applying the Four Factors. 

12.  Mr Mok further argues that the court was wrong in law and in principle to accept Mr Yiu’s submission that he was not relying on the well-established public interest litigation exception (“PIL Exception”), and was merely relying on the fact that he was an elected legislator (and thus there was public interest consideration for him to defend the actions) as part of the circumstances.   Mr Mok says the court should have taken into account and applied the PIL Exception in considering this part of Mr Yiu’s submissions for variation of the costs order and found that he had failed to satisfy the PIL Exception.

13.  There is also nothing in this contention.  It is Mr. Yiu’s position that, to be responsible for his electorate, Mr Yiu regarded himself having the need to defend the applicants’ challenge in order to carry out the duty as a LegCo Member[7]. In the premises, it is part of the factual matrix and circumstances as to why, among others, Mr Yiu decided to defend these actions.  For the purposes of costs, the court is entitled to take this circumstance into account when considering whether it was reasonable for him to do so[8].  I cannot see any basis for Mr Mok to suggest that the court must, in so considering this matter as part of the circumstances and factual matrix of this case, somehow be required to apply the PIL Exception, in particular when Mr Yiu expressly stated that he was not relying on that exception to seek to vary the costs order nisi.

14.  In relation to the Other Relevant Factors, it must be obvious that the Court has borne in mind these factors and weighed them against all the other relevant considerations as set out in the Decision before concluding that it is just and fair to make no order as to costs in all the circumstances.  This is so as the court is considering in the context of whether to vary the costs order nisi (where it was ordered in the first place that costs to be to the applicants on the basis that costs should follow the event).   There is therefore nothing in the contention that the court has failed to take into account the Other Relevant Factors.

15.  Finally, the court has a wide discretion in weighing the various relevant factors in considering what is a just and fair costs order that should be made in all the circumstances.  For the reasons that have been set out in the Decision and also explained above, the court has adopted an overall and holistic approach to consider the Four Factors and the Other Relevant Factors (including the matters summarized at paragraph 6(6) above) in the specific context and circumstances of Mr Yiu’s case[9] and come to the view that it would not be fair and just to require him to pay the costs of the actions.    I cannot see any reasonable prospect of success for the applicants to contend in the intended appeals that this court is plainly wrong in this overall exercise of discretion.    

C.  Conclusion

16.  In the premises, none of the applicants’ grounds of appeal fair a reasonable prospect of success and I refuse to grant leave to appeal against the Decision.  I further order that costs of this application be to Mr Yiu, to be taxed if not agreed, with certificate for two counsel.