MA ZHUJIANG v. SECRETARY FOR JUSTICE

HCAL 129/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 129 OF 2005

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DECISION ON COSTS

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1.  On 31 October 2005, I handed down my decision on the applicant’s application for leave to judicially review two decisions made by the Deputy Judge in the course of his criminal trial in the District Court. 

2.  I refused leave to judicial review and made an order nisi that the applicant pays the respondent the costs of these proceedings, save and except the costs of the respondent’s application to adjourn the hearing. 

3.  By letter dated 14 November 2005 from his solicitors, the applicant applies to vary the costs order nisi to provide for no order as to costs.  By letter dated 15 November 2005, the Department of Justice indicates its objection to the application.  Both parties had subsequently confirmed by correspondence that they did not require an oral hearing and would base their case on the representations contained in the letters dated 14 and 15 November 2005.  

4.  The applicant’s reasons for seeking to vary the costs order as appear in the letter are that:

“The crux of the Applicant’s case was that he was denied the right to cross examine key Prosecution witnesses as guaranteed by the Hong Kong Bill of Rights.  The obtaining of foreign evidence by way of “Letter of Request” or “request” is very common practice in Hong Kong.  The constitutional significance of admitting such evidence without the accused exercising his right to cross-examination could be far-reaching.  The right to cross-examine Prosecution witnesses is an important aspect of a fair trial as enshrined in Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights.”

5.  Costs is a matter of judicial discretion.  The exercise of the discretion, however, falls to be governed by established principles.

6.  In the present case, I do not regard the reasons advanced by the applicant as constituting exceptional circumstances that justify a departure from the normal rule of costs follow event. 

7.  This case differs from those cases involving fundamental legal issues which were brought to vindicate public interest rather than to assert or enforce a private right or interest: see R v. Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 WLR 347, at 353.  See also for instance, Leung Kwok-hung     v. Clerk to the Legislative Council  (unreported) HCAL 112/2004 at paras.12-14, New Zealand Maori Council v. AG of New Zealand [1994] 1AC 466, 485 and Oshlack v. Richmond River Council (1998) 193 CLR 72 at 80-81.

8.  In the circumstances, the application to vary the costs order nisi is refused with costs to the respondent against the applicant, to be taxed if not agreed.  The order nisi made on 31 October 2005 will be made absolute.