CHENG KAR SHUN AND ANOTHER v. HON LI FUNG YING, BBS, JP AND OTHERS

HCAL 79/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2009

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BETWEEN

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JUDGMENT   (ON  COSTS)

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Application to vary costs order nisi

1.  On 24 September 2009, the Court handed down its judgment on the applicants’ application for judicial review: [2009] 4 HKC 204. The Court dismissed the application for judicial review. As for costs, the Court said (at pp 272 to 273):

“267.  I also make an order nisi that the costs of these proceedings be paid by the applicants to the respondents (with the exception of the 7th respondent), to be taxed if not agreed, with a certificate for two counsel.

268.  Prima facie, the unsuccessful applicants are only responsible for one set of costs. The points raised by the 7th respondent could have been raised by the other respondents and the same set of lawyers could have been instructed. The 7th respondent was of course entitled to be represented by counsel and solicitors of his own choice. But he cannot make the applicants responsible for the costs of that choice. As regards his costs, I make an order nisi that save for the costs of his affirmation (which had to be prepared by somebody in any event), the 7th respondent do bear his own costs; the costs of the affirmation be borne by the applicants.

269.  The Government is essentially involved in these proceedings because they raise issues concerning not only the Legislative Council but also its relationship with the Government. Government officials, like private citizens, are equally liable to be ordered to attend before the Council and its committees to testify or to give evidence under art 73(10) of the Basic Law and s 9 of the Ordinance.  The case also involves the interpretation of art 48(11) which concerns the Chief Executive’s power.  The question of what may or may not be inquired into by the Legislative Council is also one which is closely related to the work and function of the Government.  The participation of the Secretary for Justice in these proceedings has enabled the Court to understand the perspective of the Government on these issues, and, where appropriate, to take into account its position.  That being the case, the Secretary for Justice's involvement in the present proceedings is appropriate and necessary, and the applicants should pay to him his costs, with a certificate for two counsel.  I so order (by way of an order nisi).

270.  The foregoing represents my provisional view on costs which has been formed without having the benefit of hearing from counsel.  Any application to vary the above costs orders nisi must be made within l4 days after this judgment is handed down, failing which the same shall become absolute without further order upon the expiry of the 14-day period.”

2.  The 7^th respondent now applies to vary the costs order nisi, and asks that a separate set of costs be awarded to him, with a certificate for three counsel. He also asks for the costs of the present application.

3.  The applicants and the 7^th respondent have filed submissions on costs pursuant to directions given by the Court.

4.  The respondent essentially argues:

(1)  that he should not be “penalised” for defending the public interest as a Legislative Council member and one of the twelve members of the Select Committee in question;

(2)  that he has in the proceedings raised, by reference to extrinsic materials, a separate issue regarding the drafting history of the relevant articles of the Basic Law;

(3)  that his contention regarding the extrinsic materials has been accepted by the Court;

(4)  that he has been represented at the hearing by leading counsel (Mr Martin Lee SC) who is familiar with the drafting process of the Basic Law; and

(5)  that the present case is one of exceptional importance and complexity.

5.  The applicants seek to uphold the costs order nisi. They contend that the 7^th respondent has no separate interest in the proceedings to represent and his raising a “separate” issue is insufficient to justify a separate set of costs in his favour. The applicants also submit that the 7^th respondent is not “penalised” in costs for exercising his public duty, because that duty would have been just as effectively vindicated by the legal team representing the other respondents to the application. The applicants also argue that the fact that the 7^th respondent’s contention on the separate issue was accepted by the Court is neither here nor there, because it actually overlapped entirely with the submissions of the main body of the respondents and the Secretary for Justice. The applicants contend that Mr Lee’s familiarity with the drafting of the Basic Law is an entirely irrelevant consideration. As regards the fact that the case has been an exceptionally complex and important one, with a compressed timetable for hearing, the applicants submit that all this has been taken care of by the eminent counsel and their well-resourced supporting teams representing the other respondents and the Secretary for Justice. The respondents were, the applicants add, responsible for the compressed timetable.

Discussion

6.  As I observed in the recent case of Hong Kong Aircrew Officers Association v The Director-General of Civil Aviation, HCAL 96/2008 (4 September 2009), generally speaking, an applicant for judicial review should only be made to pay one set of costs, where his application has been successfully opposed by more than one respondent, or where the opposition has come from the respondent as well as an interested party. It is for the additional respondent or interested party to justify his participation in the proceedings. As I set out in paragraph 5 of that judgment, costs is always in the discretion of the court, and there can be no hard and fast rules. In a situation of the present type, there are several interrelated questions to bear in mind:

(1)  whether the separately represented respondent has any relevant or significant interest or reason to justify his participation in the proceedings;

(2)  whether that party raises (successfully) any separate or distinct, material issue for adjudication in the same proceedings;

(3)  whether that party can be represented by the same team of lawyers of his co-respondent for the proper protection of his interest or ventilation of the issue in question.

As the exercise of a discretion is involved, the court would of course be prepared to consider any other relevant matters.

7.  In the present case, I agree with the applicants that there is no question of “penalising” the 7^th respondent for discharging his public duty and defending the public interest. The issue here is whether he should have discharged his duty and defended the public interest by instructing the same team of lawyers as his co-respondents, who were also discharging their public duty and defending the public interest in opposing the present application for judicial review.

8.  Nor do I consider Mr Lee’s obvious familiarity with the drafting process of the Basic Law a relevant consideration. First, counsel is not instructed for the purposes of giving evidence from the bar table. Secondly, counsel instructed by the other respondents and by the Secretary for Justice respectively were more than capable of handling the relevant drafting history of the Basic Law.

9.  As regards the exceptional importance and complexity of the case and the compressed timetable, I do not consider that they alone provide any good reason for departing from the general principle that this Court stated in paragraph 268 of the judgment, namely that, prima facie, the unsuccessful applicants are only responsible for one set of costs. See Shiu Wing Steel Limited v Director of Environmental Protection, CACV 350/2003, 18 March 2005, para 158; applying Bolton Metropolitan District Council v Secretary of State for Environment [1995] 1 WLR 1176, 1178F-1179A. This is particularly so when the 7^th respondent does not claim that he had a separate interest from his co-respondents to represent, and when his co-respondents as well as the Secretary for Justice were already adequately represented by eminent counsel, who were backed by well-resourced teams.

10.  However, I am with the 7^th respondent on his submission that he has in these proceedings raised a separate issue about the drafting history of the Basic Law. The relevance of the drafting history and the limits or extent to which it may be useful as an aid to interpretation have been dealt with extensively in the judgment. It is factually correct that the issue was raised by the 7^th respondent for the first time after the close of evidence, it having received no mention in the Form 86 or the evidence that had been filed by the parties. The 7^th respondent actually obtained the leave of the Court, after a contested hearing, to put in the relevant evidence. It is also true that at the substantive hearing, as a result of a division of labour agreed upon between the 7^th respondent’s team and those representing his co-respondents, submissions on the relevant drafting history were made essentially by Mr Lee. (Mr Michael Thomas SC, for the Secretary for Justice, made separate submissions on this point for his client.)

11.  I also agree with the 7^th respondent that although he did not have a separate interest of his own to represent, the fact that he did raise a separate issue is a relevant consideration to bear in mind in the present context. In this regard, I reject the applicants’ argument that in addition to raising a separate issue, the 7^th respondent must also have a separate interest to protect in order to ask for a separate set of costs. That submission is not supported by what was said by the Court of Appeal and the House of Lords respectively in Shiu Wing andBolton, supra.

12.  However, the problem with the fact that the 7^th respondent did not have a separate interest to represent is that, prima facie, unless the separate issue could not have been raised by counsel representing the other respondents, because, for instance, they refused to raise the issue after they had been told about it, there was no reason why the same team of lawyers could not have been instructed to represent all respondents. By instructing two teams of lawyers, there was bound to be some duplication of costs, which the applicants should not be made responsible for. (If a separate interest had been involved, there might perhaps be a good reason for not retaining the same team of lawyers.)

13.  There is no evidence before me that the legal team for the other respondents was not prepared to run also the separate issue on the relevant drafting history of the Basic Law, once it had been properly raised by the 7^th respondent.

14.  To illustrate my point about duplication of costs, one simply needs to consider what actually happened in Court when the separate issue was argued by Mr Lee pursuant to the agreement on division of labour. When Mr Lee was on his feet making the argument, with his juniors and instructing solicitors fervently taking note of what leading counsel was submitting to the Court, the entire team of lawyers representing the other respondents were sitting in Court at the same time listening to the submission or taking note of the same. This was, to a substantial extent, a duplication of what Mr Lee’s juniors and instructing solicitors were already doing at the same time.

15.  All things considered, I take the view that the 7^th respondent should be entitled to his costs, subject to deduction therefrom all duplicated costs. As regards the amount of duplicated costs, I could leave it to taxation, but that would give the taxing master a difficult and unfair task. Taking a broad-brush approach, I regard a discount of 60% on the 7^th respondent’s costs on account of the duplication of costs to be fair and reasonable in the circumstances of the present case.

16.  I have considered the 7^th respondent’s argument on a certificate for three counsel. Having looked at the matter in the round, I refuse the application.

Outcome

17.  In conclusion, I order that the costs order nisi regarding the costs of the 7^th respondent be varied and made absolute as follows: That the applicants pay to the 7^th respondent 40% of his costs of these proceedings (including the present application to vary the costs order nisi), to be taxed if not agreed, with a certificate for two counsel.