LEE CHU MING, MARTIN AND OTHERS v. A PERMANENT MAGISTRATE, EASTERN MAGISTRACY

HCAL 1396/2020

[2020] HKCFI 2762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1396 OF 2020

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COSTS DECISION

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A. Introduction

1.  By our judgment dated 19 August 2020, we dismissed the Applicants’ judicial review challenge to the issue of a total of 8 search warrants dated 26 June 2020 (“Search Warrants”), issued by the 1^st Respondent, a Permanent Magistrate at the Eastern Magistracy (“Magistrate”), on the application of police officers under the command and responsibility of the 2^nd Respondent (“Commissioner”).

2.  We made a costs order nisi that the Applicants shall pay the Commissioner’s costs of the proceedings, to be taxed if not agreed, with certificate for two Counsel.  The nisi order was to become absolute after 14 days, if neither party applied within that period for the order to be varied.  We stated that any variation application would be dealt with on paper.

3.  By summons dated 28 August 2020, amended on 11 September 2020, the Applicants seek to vary the costs order nisi, so that the Commissioner shall pay the costs of the Applicants with certificate for two Counsel, or alternatively that there be no costs order between the Applicants and the Commissioner.

4.  On 31 August 2020, we gave directions for the filing of submissions.  Written submissions have been filed by Counsel Albert NB Wong for the Applicants on 11 September 2020, and by William Liu, DLO(C)(Ag) for the Commissioner on 25 September 2020, and by Mr Wong for the Applicants in reply on 5 October 2020.

5.  Having considered those submissions, this is our Costs Decision.

B.     The Variation Application

6.  It may be useful first to set out the broad scope of the rival contentions, noting that – other than attempting a fairly glancing blow, and only in reply submissions – the Applicants do not place reliance on the “public interest litigation” exception.

7.  Instead, Mr Wong reminds us of the opening paragraphs of the Judgment, in which we noted that the case raised important questions relating to the appropriate balance between protection of basic rights and the needs of law enforcement agencies.  Against that general background, Mr Wong makes three related observations as forming the basis of his submissions, namely:

(1) the exceptional circumstances that led to the application for judicial review and the success of Ground 4;

(2) the absence of any positive case by the Commissioner to clarify the particularity of the Search Warrants in contrast to the findings of the Judgment; and

(3) notwithstanding the lawfulness of the Search Warrants, whether in the circumstances the Applicants nevertheless succeeded in bringing about change for both personal and public interest.

8.  Mr Liu first makes the point that all of Grounds 1, 2 and 3 were dismissed in the Judgment, on the basis that they do not have merit.  Though we see no need to repeat it here, he also sets out the broad basis of the dismissal of each of those Grounds.  As to Ground 4, whilst the Judgment agreed that the Magistrate had jurisdiction, no relief was granted as it would serve no purpose for the Magistrate to hear the same arguments.

9.  Mr Liu relies on the well-settled general rule or starting point that costs should follow the event, even in public law litigation.  Who is the successful party must be determined by reference to the judicial review application as a whole, taking into account the reasons stated in the Judgment, and adopting a common sense approach.  So, says Mr Liu, it can be seen that the Commissioner has been wholly successful in resisting the application for judicial review.  The Commissioner succeeded on the three Grounds directed against him, and Ground 4 was really raised against the Magistrate.

10.  Comments to be found in the Judgment in relation to good practice do not, Mr Liu submits, directly affect the legality of the Search Warrants, and the majority of the Applicants’ submissions were flatly rejected in the Judgment.  It can also be noted, Mr Liu says, that the allegation that the Commissioner breached his duty of candour was found to be a bad point.

C.     Analysis

11.  Mr Wong relies upon the chronology of events giving rise to the application for judicial review.  In particular, he refers to the attempts to engage the Commissioner, or his legal representatives, in the intended application to be heard by the Magistrate, and the Commissioner’s response that the police would proceed to unseal and examine the relevant digital devices unless any aggrieved party instituted legal proceedings to establish a claim to legal professional privilege (“LPP”).  Mr Wong says that LPP was not the only question, where the Applicants had made plain their desire for an inter partes hearing before the Magistrate to set aside or vary the Search Warrants.  That stance led to the urgent hearing on 4 July 2020, where the Commissioner was not represented despite having notice.

12.  By then, the Magistrate had refused to hear such an application.  The Judgment held that was certainly an erroneous stance to have taken.  Against that finding, Mr Wong submits, where the Commissioner’s legal team proceeded on the basis that the Magistrate “probably” had jurisdiction, that was an inappropriate stance.  Either jurisdiction exists or it does not, and Mr Wong submits that the Commissioner should have helped facilitate the Applicants’ access to justice rights before the same Magistrate who granted the order ex parte against their interests.  Mr Wong relies on analogous comments made by Chow J in AS v Torture Claims Appeal Board [2020] 1 HKLRD 153 at §§17-19.  In so far as the Commissioner now wishes to paint the picture that he always accepted that the Magistrate had jurisdiction, Mr Wong says that is simply incorrect, as the contemporaneous correspondence identifies.

13.  So, says Mr Wong, the Applicants had no choice but to exercise their Basic Law access to justice rights by proceeding with the judicial review.  Further, he submits that only now have the rights to LPP been given effect because of the application for judicial review.  In the circumstances, the Applicants’ success on Ground 4 was important, giving rise to certainty (not probability) that, in future, applications to set aside must be heard.

14.  We note Mr Liu’s suggestion that we agreed with the Commissioner that the Magistrate “should have jurisdiction”.  But we think Mr Wong is correct when he points out that the Commissioner had not clearly agreed that the Magistrate did have jurisdiction, and that jurisdiction is not something which “should” exist; either it does, or it does not.

15.  Mr Wong submits that the Applicants are entitled to the costs of the hearing with certificate for two Counsel because: (a) the Commissioner played a key role in necessitating the judicial review hearing by indicating (even before the Magistrate’s decision) that he would access the phones; (b) but for the application, the Applicants would have had no opportunity further to discuss the issue of LPP; (c) clarity and certainty over the scope of the authorised search was only forthcoming because of these proceedings; and (d) the fact that the Applicants were so obviously correct as to Ground 4 should not count against them in terms of costs, but be a significant factor in their favour.

16.  As to point (c), Mr Wong further submits that clarity over the proper indicia for the particularisation of the scope of the search authorised by the Search Warrant was only achieved by the Judgment.  He also refers to §110 of the Judgment, where we identified that where contextual indicia are not present then it would be at least good practice (but often probably a requirement) that the date of the alleged offences be indicated in the description of the offence on the face of the Search Warrant.  So, Mr Wong submits, the Police’s practice as to what must be stated on warrants must change, and this is the benefit and guidance to all achieved from the application for judicial review.

17.  As to point (d), Mr Wong submits that the Judgment has fulfilled both personal objectives of the Applicants, as well is public interest objectives.  He says the success on Ground 4 must have public interest implications which will assist the judicial gatekeeping role in the future.

18.  Mr Wong submits that the Applicants ultimate concern was always in relation to certainty over the scope of the search authorised by the Search Warrants, and that the relevant legal principles for the authorisation by warrant of the examination of phones has now been clarified.  He submits that the Applicants have conducted the proceedings decently, whereas the Commissioner has never made relevant concessions or clarifications in a timely or certain manner.  So, Mr Wong submits, the Applicants have merely succeeded in fulfilling the exercise of rights that arise out of issue of a search warrant.

19.  As Mr Liu identifies, the Applicants have based their costs submissions primarily on criticising the Commissioner’s conduct and stance taken in the application for judicial review.  Mr Liu says that, not only are the observations or criticism groundless, they could not be sufficient to overturn the general rule as to Costs.

20.  Mr Liu submits that, in light of the Magistrate’s declining jurisdiction (without inviting the Commissioner or the DOJ to make submissions), the application for judicial review was inevitable were the Applicants to wish to challenge that ruling.  We agree.

21.  We accept that the conduct of the Commissioner may be a matter which the Court can take into account when considering the issue of costs.  However, whilst we accepted that the Magistrate was wrong in thinking she did not have jurisdiction, we do not think the Commissioner actively caused that error by the Magistrate.  Ground 4 anyway formed a very small part of the argument leading to the Judgment.  Further, we do not think the Judgment really clarified the law in that respect, where it was previously set out by binding Court of Appeal authority in the Keen Lloyd case.

22.  Therefore, whilst we see some force in Mr Wong’s point that the brevity of the argument on Ground 4 essentially related to its simplicity and the absence of any proper basis to have opposed it, we do not think that is a basis which provides any great weight in the overall discretionary costs exercise.

23.  But, in any event, rather than merely seeking a decision from the Court that the Magistrate should conduct an inter partes hearing, the Applicants also challenged the legality of the Search Warrants.  We do not think it is correct to suggest that the Commissioner necessitated the judicial review challenge.  It was up to the Applicants to choose to run their challenge to the Search Warrants before the Magistrate (limiting any judicial review challenge to Ground 4) or by way of judicial review, as was the path chosen.

24.  Nor is it correct to suggest that, but for the judicial review application, the Applicants would have had no opportunity to further discuss the issue of LPP.  LPP is a separate matter, and any claim to that privilege will fall to be resolved separately.  It formed no part of the argument on the grounds of judicial review raised by the Applicants.

25.  As to the clarity and certainty point – Mr Wong’s point (c) above – we agree with Mr Liu that we accepted the correctness of the Commissioner’s position as to what are the legal requirements to be stated in a search warrant.  We also agree that the comments we made in the Judgment in relation to good practice (specifying dates of offences where possible) do not turn the Applicants into the winning party.

26.  All of their Grounds 1, 2 and 3 failed.

27.  Mr Wong’s repetition in his reply submissions as to what was the fundamental case previously advanced by the Applicants on Ground 1, and the various elements of the argument deployed and our analysis, do not seem to us to help in the overall consideration of the appropriate costs consequences.  Repetition of those points does not change the result, nor does it somehow lead to reconsideration as to who was the successful party.

28.  Similarly, we also agree that the fact that the Commissioner exhibited documents not otherwise in the public domain, for the purposes of the judicial review proceedings and in fulfilment of the duty of candour, does not justify an adverse consequence on costs, where the application for judicial review was successfully resisted.

29.  As to Mr Wong’s point (d) above, we agree with Mr Liu that the Commissioner did not “frustrate” any “right” which the Applicants claim to being able to satisfy themselves of the clarity and legality of the Search Warrants.  Indeed, it seems to us that they exercised their right to challenge the Search Warrants.  Whilst it might be said that the clarity and legality of the Search Warrants were somehow provided by the Judgment, it was in a judgment where the challenge to the Search Warrants wholly failed.

D.     Result

30.  We reject Mr Wong’s submission that these proceedings are an exceptional case that cannot be measured by the usual standards.  Though the point was only taken lightly, we also do not think the public interest exception applies.  Nor do we think the way in which Grounds 1 and 4 were determined are significant in relation to the exercise of our discretion as to costs.

31.  In the circumstances, we see no possible justification for requiring the Commissioner to pay the Applicants costs.  The first limb of the variation application is, therefore, dismissed.

32.  As to the second limb, we also see no justification in the exercise of our discretion to deprive the Commissioner of his costs of wholly successfully defending the challenge made by the Applicants in these proceedings.

33.  We, therefore, dismiss the amended summons dated 11 September 2020, with costs to the Commissioner, to be taxed if not agreed.