NG SHEK WAI v. INDEPENDENT COMMISSION AGAINST CORRUPTION

CACV 97/2018

[2019] HKCA 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 97 OF 2018

(ON APPEAL FROM HCAL 502/2017)

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DECISION ON COSTS

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Hon Lam VP (giving the Decision on Costs of the Court):

1.  This Court delivered a judgment on 26 March 2019 dismissing the appeal. We also directed parties to lodge submissions on costs.

2.  Counsel for the Putative Respondent lodged submission on 9 April 2019 seeking an order that the costs of the Putative Respondent to be paid by the Applicant.  A Statement of Costs asking for the total sum of $135,099 was attached to the submissions.

3.  The Applicant lodged submission on 17 April 2019 resisting the application for costs by the Putative Respondent.  He submitted that he should have the protection against liability for costs on the same basis as an application for leave in the first instance as there was no initial response nor inter parte hearing at the court below.  He also suggested that as the ICAC had already had the Withheld Document before the initial response, they should take the initiative in re-considering his case to obviate the need of an appeal.  He said it was due to the inaction on the part of the ICAC that the costs of the appeal were incurred.  He also commented on the quantum of costs and objected to certificate for two counsel.

4.  The Putative Respondent lodged submission in reply on 2 May 2019.

5.  We have read and considered these written submissions.  We do not find it necessary to hold an oral hearing to determine the question of costs.  Our decision on costs is set out below.

6.  The approach of the courts to costs in an application for leave to bring a judicial review was discussed by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (2014) 17 HKCFAR 841.  The position on intermediate appeal was stated at [17(8) to (12)] of that judgment.  For present purposes, the relevant principles (derived from these parts of the judgment), are as follows:

(a) The usual rule is costs should follow the event;

(b) The rationale is that an applicant had already had the benefit of the reasons of the first instance judge in rejecting his application and the application of the usual rule at the appeal stage strikes a fair balance between competing interests;

(c) The application of the usual rule is particularly appropriate where the Court of Appeal’s reasons for dismissing the appeal are broadly the same as the first instance judge’s reasons for refusing leave; and

(d) There can be exception to the usual rule when the public interest litigation is applicable where the test in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 is satisfied.

7.  We do not accept the submission of the Applicant that the absence of initial response or inter parte hearing at the court below constitutes valid ground for departing from the usual rule. Notwithstanding the non-involvement of the Putative Respondent at the Court of First Instance, the Applicant had the benefit of the detailed reasons of Zervos J in refusing leave.  Input from a putative respondent by way of initial response or submission at an inter parte hearing only provides assistance to the first instance court in arriving at the reasons for refusing leave.  The assessment if there are good grounds of appeal should focus on the reasons given by the judge.  The availability of the judge’s reasons for refusing leave provides sufficient ground to revert back to the usual discipline for costs on appeal even if a putative respondent had no input at first instance. 

8.  Further, as apparent from our judgment of 26 March 2019, our reasons for dismissing the appeal are broadly the same as those given by Zervos J notwithstanding that we sought inputs from the Putative Respondent before arriving at the same conclusions on the various grounds originally advanced by the Applicant.  For reasons explained in our judgment, we refused to entertain new grounds put forward by the Applicant for the first time on appeal.    

9.  In this respect, we do not accept the Applicant’s submission that the complexion of the case had changed by reason of matters raised in the initial response.  This Court had emphasized that we are confined to the issues raised and considered by the judge in assessing the merit of the appeal.

10.  We cannot see any good reason to depart from the usual rule of costs following event in the present appeal.  The fact that the Putative Respondent participated in the appeal at the direction of the Court could not assist the Applicant in avoiding the usual costs consequence.

11.  The alleged inaction on the part of the ICAC after the Withheld Documents were supplied does not fall into the scope of the judicial review.  There was no inquiry into whether the ICAC had taken further steps since the supply of such documents and if so whether the Applicant’s complaint had been adequately investigated.  In light of that, we cannot accept the Applicant’s bare assertion on his costs submission that the appeal was occasioned by the alleged inaction.

12.  In our judgment, the Applicant should bear the costs of the Putative Respondent in this appeal.

13.  On the quantum of costs, we agree with the Applicant that the case does not merit the engagement of two counsel.  At the same time, we accept that there had been division of works between the two counsel and if one counsel is engaged the time spent by such counsel would have been more.  Counsel for the Putative Respondent assured this Court that the costs concerning redaction had not been included.  We would also reduce the time engaged for preparation of the Initial Response and Skeleton Argument and List of Authorities.  After making the necessary deductions, we shall make a gross sum assessment and fix the costs of the Putative Respondent at $82,166, such costs shall be paid by the Applicant to the Putative Respondent.