LEUNG HON WAI v. SECRETARY FOR HOME AFFAIRS

HCAL 103/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 103 OF 2015

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DECISION ON COSTS

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1.  At the hearing on 26 February 2016, I dismissed the applicant’s leave application for judicial review on the basis of delay.

2.  The putative respondent, the Secretary for Home Affairs (“the Secretary”), has asked for costs of the leave application.

3.  This is my decision on costs.

4.  To deal with whether I should order costs against the applicant, I need to first mention briefly again my reasons given at the hearing for refusing leave on the basis of delay.

5.  The applicant in his intended judicial review seeks to challenge the decision of the Secretary to refuse to exercise her power under Section 15 of the New Territories Ordinance (Cap 97) (“the section 15 power”) to cancel the appointment of managers of the purported t’ong “Tai Sha Shrine” (大社壇) in whose name Cheung Chau Lot No 361 is purportedly held.

6.  The applicant filed his leave application on 17 June 2015.  In the Form 86, he says the decision was made on 18 March 2015.

7.  At the court’s directions, the Secretary has filed an Initial Response to oppose the leave application. The only ground relied on by the Secretary at this stage to oppose the leave application is that it is made way out of the 3-month time limit required under Order 53, rule 4(1) of the Rules of the High Court.  In support of the opposition, the Secretary has in the Initial Response also provided documentary materials to show that, since 1974, the applicant has already been objecting the appointment of the managers to the Tai Sha Shrine and asking the Islands District Office and the Secretary to act upon what he said to be the “unlawful” or “invalid” appointment of those managers.  The documentary materials include various correspondences between the applicant and the Islands District Office concerning his repeated objections.

8.  Notwithstanding this background, Mr Valentine Yim (counsel for the applicant) has submitted that in none of these previous various objections made by the applicant had he expressly asked the Secretary to exercise the section 15 power.  It was only in the applicant’s letter dated 20 February 2015 that he for the first time expressly asked the Secretary to exercise her section 15 power to cancel those appointments.  This (and some later letters sent by the applicant) had led to the Secretary’s decision contained in the Islands District Office’s letter dated 18 March 2015 to (by referring to the reasons in her much earlier letter dated 9 September 2010) refuse to cancel the appointments.  As the applicant’s challenge in this intended judicial review was premised solely on the Secretary’s exercise of the section 15 power, the relevant decision was the one made on 18 March 2015, and hence the leave application was made within the 3-month time limit.  There is therefore (says Mr Yim) no delay.  In order to make this clear, Mr Yim has provided a draft Amended Form 86 to reflect the position that the applicant is only challenging the Secretary’s wrongful exercise of the section 15 power, and hence only the 18 March 2015 decision.

9.  After hearing the parties, I dismissed the leave application on the basis that there is delay in making the leave application.

10.  I came to the view that there is delay on this primary basis:[1] even taking the applicant’s case to the highest, by reading all the correspondences he had with the Secretary in context, the applicant at the latest had in his letter dated 28 August 2013 asked the Secretary to “cancel” the appointment of the managers.  By her letter dated 6 September 2013, the Secretary (in referring also to her reasons set out in a letter dated 9 September 2010 not to entertain the applicant’s previous objections) in effect refused to cancel the managers’ appointment.  Given that the Secretary could only “cancel” the appointments of mangers by exercising the section 15 power, thus, at the latest, the Secretary made a decision on 6 September 2013 to refuse to exercise that power.  The grounds for challenging any unlawful exercise of that power (as alleged by the applicant) therefore arose on 6 September 2013, and the time to ask for leave to challenge by way of judicial review that exercise of power started to run since then and ended in December 2013.  Any later effort to ask the Secretary to exercise that power again in “regenerating” the 18 March 2015 decision cannot circumvent that delay.[2]  In the premises, the present leave application was made some 18 months out of time and there are no good reasons to extend time, in particular given that the applicant has not provided any explanations (let alone reasonable explanations) for the delay.

11.  As I mentioned above, after dismissing the leave application, Ms Wu for the Secretary has asked for costs of this leave application.

12.  The principles governing costs of an unsuccessful contested leave application at first instance have been laid down by the Court of Final Appeal in Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841 relevantly at paragraph 17(1) - (5) (omitting the footnotes), per Ribeiro PJ as follows:

“17.    The present case therefore provides a useful opportunity for the Court to state the principles to be applied in relation to the costs of opposing parties in unsuccessful applications for leave to apply for judicial review.

The basic principle at first instance

(1)    The basic principle remains that costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant. Notwithstanding the guidance that follows, there may be exceptional cases in which the discretion, which is a broad one, may be properly exercised otherwise than it would in other cases.

(2)    Since applications for leave to apply for judicial review are, by the rules themselves, meant to proceed on an ex parte basis, the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent or putative interested party unless there are special or unusual circumstances which justify such an award. The discretion of making an award of such costs should be sparingly exercised. Good reason will therefore be required in order for the court to make an order in relation to these costs against an applicant.

(3)    There is no definitive list of reasons that may justify an award of costs against an applicant and in favour of a putative respondent. As already indicated, the discretion as to costs is broad. All facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.

(4)    Without limiting what the court will take into account, it will certainly be relevant to focus on the reason that has led the opposing party to attend at the hearing, whether that party’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application, always bearing in mind that the context is the end result that the court has refused to grant leave to apply for judicial review.

(5)    By way of example of these particular considerations: if the putative respondent or putative interested party has attended at the invitation of the court, the reason why the court has considered that party’s presence necessary will be relevant; so too, if the opposing party’s presence at the hearing may have been necessary because of an application for interim relief; if an application was thoroughly ill-conceived or unmeritorious, this may be a weighty factor justifying an adverse costs order; similarly, if it was so frivolous or vexatious, or motivated for a tactical purpose indicating bad faith; where, as a result of the attendance of an opposing party, 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, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing. These considerations may or may not justify a costs order in favour of a putative respondent and it is important to stress that the ultimate decision remains in the discretion of the judge.

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13.  Bearing these principles in mind, I am satisfied that I should depart from the usual no order as to costs position and order costs against the applicant in the present leave application.  My reasons are these:

(1)   I have dismissed the leave application on the basis of significant undue delay.  This ground has only become relevant and apparent after the Secretary has filed her Initial Response, bringing to the attention of the court the long chequered history and background of the applicant’s opposition to the appointment of the managers of the Tai Sha Shrine, and his dealing with the Secretary through the Islands District Office.  In particular, it is upon reading all the correspondences provided by the Secretary underlying the above history, including the ones in 28 August and 6 September 2013 I mentioned above, that the court can properly assess when the Secretary first made the decision based on the section 15 power.

(2)   In this respect, it must be noted that in the initial ex parte leave application filed with the court, insofar as correspondences are concerned, the applicant has only disclosed in his supporting evidence his letter dated 20 February 2015 to the Islands District Office and the Islands District Office’s letter dated 18 March 2015 (ie, the purported decision the applicant seeks to challenge), together with a copy of the Office’s letter dated 9 September 2010 enclosed in that letter.  He has not disclosed any of the previous correspondences I mentioned above.

(3)   In light of the above context, it is obvious to me that if I had not asked for the attendance of the Secretary (both by way of the filing of the Initial Response and by attending the hearing), the applicant himself would not have brought the issue of delay and the need for an extension of time to this court.  If I had then granted leave on that basis, it is obvious that (and as confirmed by Ms Wu) the Secretary would have made an application by way of summons to set aside leave on an inter-partes basis for delay.  I would then for the same reasons have set aside leave and awarded costs of the application to the Secretary.

(4)   In the circumstances, there cannot be any good reasons to justify why the Secretary should be given her costs if she has taken out her own application to set aside the ex parte leave for delay, but not so when she has been invited by the court to attend the leave application and opposes it on the same basis.  This is particularly so in light of the applicant’s failure to bring to the court’s attention of the potential issue of delay and the fact that the intended judicial review is only to advance his personal interest.

(5)   In the premises, it is only fair and just for the court to order costs against the applicant in this unsuccessful leave application.

14.  For these reasons, I order that costs of this leave application (including the costs incurred in the Initial Response) be to the Secretary, to be taxed if not agreed.