DOMINGO DANIEL L. v. COMMISSIONER OF REGISTRATION AND ANOTHER

FACV No. 19 & 20 of 2012

FACV No.19 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 19 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 204 OF 2011)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ :

1.  This is the judgment of the Court as to costs. The appeals were dismissed and the parties have now lodged written submissions as to costs. 

2.  The Commissioner submits that costs should simply follow the event, the appellants having failed in their attempt to secure a declaration that Art 24(2)(4) of the Basic Law renders section 2(4) of the Immigration Ordinance’s disqualification of foreign domestic helpers from acquiring the right to permanent residence unconstitutional.

3.  The appellants submit that the Commissioner should only get 60% of his costs because he failed on three of the four major arguments he had mounted.  While he succeeded on (i) the construction of the words “ordinarily resident”, he failed on (ii) his “margin of discretion” argument; (iii) his submission that if in doubt as to the meaning of “ordinarily resident” in Article 24(2)(4), the Court should refer to extrinsic materials, including “the statement” in the 1999 Interpretation; and (iv) his contention that, to the extent that there was an arguable doubt as to whether “the statement” formed part of the 1999 Interpretation, the Court had to refer the question of the scope of an Interpretation under Article 158 to the NPCSC. 

4.  The appellant accuses the Government of having raised questions (iii) and (iv) for the “ulterior and collateral purpose of attempting to resolve the issue of babies born to Mainland parents in Hong Kong by way of overturning this Court’s 2001 interpretation” in Chong Fung Yuen.

5.  We are unable to accept the appellants’ arguments.  The Commissioner’s arguments were sequential.  The Court did not reach points (ii) to (iv) because it was held that the appellants fell at the first hurdle.  The Commissioner should not be penalised for advancing as his second point, on the margin of discretion argument.  It was reasonably arguable and the Court did not find against the Commissioner on that point, but held that it was unnecessary for it to be decided (§90).

6.  Nor do we think that raising points (iii) and (iv), constituted an abuse.  They were advanced contingently relevant if and in so far as the Court considered it necessary to examine extrinsic materials and to decide whether “the statement” was part of the binding 1999 Interpretation. If the Court had been unable to dispose of the appeal on the basis of point (i) or point (ii), it may well have had to consider questions (iii) and (iv).  Raising those points therefore involved no abuse.

7.  In the circumstances, costs should follow the event and that the Commissioner should be awarded his costs.

8.  The appellants also ask for a direction that there be a certificate for 4 counsel and that their costs be taxed in accordance with the Legal Aid Regulations.  Given the importance of the case and the wide-ranging issues addressed in argument, we so direct.