TONG YU LAM v. THE LONG-TERM PRISON SENTENCES REVIEW BOARD AND ANOTHER

CACV 203/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 203 OF 2006

(ON APPEAL FROM HCAL NO. 18 OF 2005)

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D E C I S I O N

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Hon Stock JA (giving the decision of the Court):

1.  By judgment dated 7 January 2008, we dismissed this appeal from the dismissal of a judicial review.  Despite the failure of the applicant in relation to most of the grounds, we held that the Board had erred in its review of November 2004 but declined relief because there had been a further review in September 2006 where the same error had not been repeated.  We determined in the circumstances to make a costs order nisi that there be no order as to costs, save that the applicant’s costs be taxed in accordance with the Legal Aid Regulations.

2.  Each side now seeks to vary that order.

3.  The applicant asks that it be varied so that there be no order as to the costs of the appeal or in the court below.  The variation sought is restricted to the costs in the court below because the applicant was ordered by the Court of First Instance to pay those costs, to be taxed if not agreed.

4.  On the other hand, the respondents ask that the applicant be ordered to pay the respondents’ costs of the appeal, including the costs of and occasioned by an amendment application in May 2007, whereby the Secretary for Justice was added to the proceedings; and that the costs order below remain undisturbed.

5.  The history is a little convoluted and we do not propose to deal with it in detail here.  It suffices to say that the notice of application for leave to apply for judicial review was dated March 2005 and the first instance judgment was entered for the respondent in January 2006.  As our judgment makes clear, we think that the applicant ought to have succeeded on one of the grounds pursued, though not upon the others.  Therefore, although the applicant seeks only an order for no costs, there would be good reason for ordering that costs at first instance should follow the event, and that the order for costs made at first instance should be substituted for one in favour of the applicant.

6.  The hearing of the appeal was set for January 2007 but was adjourned because it was thought appropriate that the Secretary for Justice be joined to the proceedings.  It is said that the applicant could and should have thought of that before and that the costs occasioned by that adjournment should be in the respondent’s favour.  There is some merit in that although we note that the Secretary had been served with the papers long before that.  On the other hand, there was a hearing in June 2007 at which that joinder and the making of amendments was the subject of an application to court and although the hearing was helpful, we are not convinced that it was necessary: the respondents could have consented to the orders sought.

7.  Then it is argued that the proceedings could have been discontinued as against the Board because the gravamen of the application as finally constituted upon appeal was on constitutional points to which the Board was not a necessary party and that in so far as the Board is said to have erred in its 2004 decision that became academic by the time of the appeal because there had been a new decision.  In our view, it was not entirely academic.  It was important that the error, which had several times been repeated, be pointed out so that it would not be made again.

8.  Finally it is said that the Secretary should have its costs of the appeal in any event, having succeeded on the constitutional issues.

9.  We remain of the view that the order nisi reflects the justice of the matter, taking a broad and global view.  The order of costs below will be varied so that in relation to that hearing there will be no order as to costs; and, further, there will be no order as to the costs of the appeal or in relation to the adjournment of 23 January 2007 or as to the applications made in May and June 2007.  In relation to each hearing, the applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.