KAMRAN JAVID v. PERMANENT SECRETARY FOR SECURITY

HCAL 592/2023

[2024] HKCFI 360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 592 OF 2023

________________________

________________

___________________________

COSTS RULING

___________________________

A.  Introduction

1.  By my Judgment dated 31 July 2023, [2023] HKCFI 1944, and following a rolled-up hearing, I dismissed the Applicant’s application for leave to apply for judicial review in respect of both his Grounds 1 and 2. Though I granted leave to apply for judicial review in respect of his Ground 3, I dismissed the substantive application for judicial review on that ground.

2.  In my Judgment, I indicated that I saw no reason why costs should not follow the event. I made a costs order nisi for the PS for S’s costs to be paid by the Applicant, to be taxed if not agreed. The order was to become absolute after 14 days if no application for variation was issued within that time. I stated that any such application for variation would be dealt with on paper.

3.  By his letter dated 9 August 2023, the Applicant (by this time acting in person) applied to vary the costs order nisi, seeking a variation so that there should be no order as to costs. Ms Leona Cheung and Mr Felix Lee (who represented the PS for S in the rolled-up hearing) filed submissions dated 22 August 2023, asking that the variation application be dismissed. The Applicant responded by further submissions on 28 August 2023.

4.  Having considered those submissions, this is my Costs Ruling.

B.  The Submissions

5.  In his submissions, the Applicant has pointed out that the original application for leave to apply for judicial review was only turned into a rolled-up hearing so as to save Court time and minimise the costs paid by Government and taxpayers. The Applicant says that he challenged two decisions, where leave was refused on one, and leave granted on the other (albeit that the substantive application failed). He also identified that “all” documents in his case had been used in previous court cases.

6.  In his first submissions, the Applicant also sought to draw attention to his personal and family circumstances including that (as he stated); (1) his three children and his wife are his whole world; (2) he has left his business; (3) he wasted a precious period of life for the past 5½ years; (4) he has divorced his second wife; and (5) his life and business and everything have been ruined to such a level that it has affected his mental health. Hence, costs/money should be used for the betterment of three innocent children instead of using it otherwise in court proceedings.

7.  In his second submissions – filed as a response to Ms Cheung’s submissions – the Applicant has emphasised that: (1) leave was granted on his Ground 3; (2) the applicable legal principles plainly allow the Court to make no order as to costs; (3) the cases cited by Ms Cheung are off point; (4) each case should be judged against its own history and background; (5) despite moving from one Government department to another, one court to another, one Counsel to another on a private basis, there has been no recourse to public funds; (6) he is asking for “compression of costs matter due to these family circumstances”.

8.  In her submissions, Ms Cheung relied upon the principles set out in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at §17. Whilst leave applications are generally meant to proceed ex parte and the general rule is that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are special or unusual circumstances, the Court has a broad discretion. Whilst there is no definitive list of reasons, all facts and circumstances may be relevant including (1) the reason that had led the opposing party to attend at the hearing; (2) whether that party’s attendance had been of material benefit to the Court in determining the leave application; and (3) the lack of merits of the application. It may also be relevant to take into account if the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge.

9.  Ms Cheung submits that there are strong reasons to order the Applicant to bear the PS for S’s costs, including: (1) the Applicant had the benefit of a rolled-up hearing with full argument, directed at his own request; (2) in all, the entirety of the Applicant’s case failed, where he could not reach the threshold of reasonable arguability in respect of two of his three intended grounds (i.e. Grounds 1 and 2), and though passing that threshold for Ground 3, it was dismissed on the substantive application. Further, the Judgment pointed out that even if Ground 3 could be substantively made out, relief would have been futile.

10.  Ms Cheung also submits that the suggestion that all documents in this case had previously been used in other cases is simply factually incorrect. Further, the Applicant’s plea to be spared a costs liability on the grounds that his money would be better spent on his children instead of on court proceedings rings hollow. Indeed, following the request for variation of the costs order, the Applicant served a Notice of Appeal on private instructions to a solicitors’ firm. Even in this case, the Applicant was represented by two Counsel on private instructions.

11.  I have taken all of the above competing submissions into account in reaching my decision below, in the discretionary balancing exercise appropriate to a decision on costs.

C.  Decision on Variation

12.  The Applicant sought and was granted a rolled-up hearing, at the conclusion of which the Applicant was ultimately unsuccessful on all of his three grounds. He failed even to obtain leave to apply for judicial review in respect of Grounds 1 and 2, and failed on the substantive application on Ground 3. Even had there been a leave only hearing, the grant of leave on Ground 3 would have necessitated a subsequent separate substantive hearing, which would likely only have increased the costs overall. In any event, the grant of relief was at least unlikely where it seemed futile, as I held.

13.  In my view, it was appropriate for there to have been the rolled-up hearing, or else I would not have directed it. But the consequence is that the Applicant has had a full hearing, with full argument on the full documentation. I see no good reason why the costs should not follow the event in those circumstances. The Applicant’s claimed personal circumstances do not seem to me to be weighty in the context of whether or not he should be ordered to pay costs. Certain other aspects of his submissions might be relevant only to the quantum of costs, rather than to the incidence of costs.

14.  Therefore, I dismiss the variation application, save to add a certificate for two Counsel (which the Applicant does not oppose). However, I make no order as to costs of the variation application itself.

15.  I will deal with quantum of a summary assessment on paper.

16.  A Statement of Costs for summary assessment should be provided within 14 days, and any List of Objections within 14 days thereafter.

D.  Postscript

17.  I cannot end this Costs Ruling without mentioning one other point, albeit that I have chosen not to take it into account in the discretionary costs exercise above.

18.  In his letter dated 9 August 2023, as part of the description of his family circumstances (see above), the Applicant wrote, “I divorced my second wife (Sham divorce)”.

19.  Unsurprisingly, Ms Cheung drew attention to that, and placed some weight on it in her submissions. As she stated, the idea that the Applicant’s divorcing the second wife was a “sham” was the very opposite to the factual position which the Applicant was urging on the Court, and went to the heart of his case on Grounds 1 and 2 – namely that his divorce was genuine, so that he was therefore in materially the same circumstances as before his second marriage.

20.  Ms Cheung pointed out that, if established, such misleading of the Court (and the PS for S) is serious, potentially criminal, and calls into question the propriety of the conduct of the Applicant and those who represented him, particularly in the context of an ex parte leave application where an applicant bears the duty of full and frank disclosure.

21.  Insofar as Ms Cheung has suggested that the point calls into question the propriety of those representing the Applicant, I do not think that suggestion is well-founded, where those who represented him would do so on instructions and there is no basis for thinking that the representatives knew the assertion that the divorce was genuine was in any way false. I expressly reject the suggestion.

22.  However, as regards the Applicant himself, if the Applicant was indeed saying that the divorce of his second wife was a sham – as his chosen wording seems clearly to identify – that would indeed be a serious matter. I note that the Applicant has made no response to Ms Cheung’s submissions in this regard, notwithstanding that he filed his reply submissions expressly “to answer … the putative respondent made serious allegations on applicant”. The Applicant has not sought to explain that his reference to a “sham divorce” has a different meaning.

23.  On the face of it, therefore, the Applicant has inadvertently revealed that a main factual plank of his application was based on an untruth supposedly verified in his evidence. Ultimately, I acknowledge, that may or may not be correct. But, in circumstances, I am referring the papers to the Director of Public Prosecutions.