LEUNG KWOK HUNG v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

CACV 123/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2012

(ON APPEAL FROM HCAL 64/2012)

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JUDGMENT (ON LEAVE TO APPEAL ON COSTS)

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Hon Cheung CJHC:

1.  On 1 February 2013, we dismissed the applicant’s appeal from the refusal of Lam J (as Lam VP then was) to grant leave to apply for judicial review and from the judge’s consequential order of costs against the applicant. We made a costs order nisi against the applicant.

2.  On 18 April 2013, we dismissed the applicant’s application to vary the costs order nisi and ordered that the same be made absolute.

3.  On 18 July 2013, we refused the applicant’s application for leave to appeal to the Court of Final Appeal.

4.  On 18 October 2013, we directed, by consent, that the applicant’s application for leave to appeal to the Court of Final Appeal on costs be dealt with by written submissions only, and gave directions for the lodging of written submissions.

5.  On 16 December 2013, after the first round of written submissions on costs had been lodged, the applicant successfully got leave from the Court of Final Appeal to appeal to that court.

6.  By his reply submissions dated 27 December 2013, the applicant applied to withdraw his application for leave to appeal to the Court of Final Appeal on costs, as this will be a matter that the Court of Final Appeal can deal with when hearing the substantive appeal.  The applicant submitted that there should be no order as to costs regarding his application for leave to appeal on costs.

7.  In their respective letters to the court, both the respondent and the interested party asked for costs against the applicant despite the withdrawal of his application for leave to appeal on costs, essentially on the ground that it was a doomed application from the beginning.

8.  Given the development, I would dismiss the application for leave to appeal on costs.

9.  As regards costs, if the Court of Final Appeal had not granted leave to appeal and the applicant had not sought to withdraw the application for leave to appeal on costs, I would, subject to what the applicant might have wanted to say in his reply submissions, have been inclined to dismiss his application on the basis that our judgment on costs, which was based entirely on the facts of the present case, raised no question of great general or public importance, justifying the grant of leave to appeal.

10.  However, what I cannot say for sure is whether the Court of Final Appeal might have wished to grant leave to appeal on costs in order to consider giving general guidance on how the discretion on costs in this type of case should be exercised.

11.  Moreover, I can also see that the outcome of the substantive appeal might have a bearing on the question of costs.  The outcome, and particularly the reasons that the Court of Final Appeal give for its decision might, depending on the circumstances, have an impact on how one should approach the costs of this abandoned application for leave to appeal regarding costs.

12.  For these reasons, I would therefore reserve the question of costs of this application to the Court of Final Appeal either for further directions or for determination.

Hon Kwan JA:

13.  I agree with the order proposed by the Chief Judge for the reasons he gave.

Hon Poon J:

14.  I agree.

Hon Cheung CJHC:

15.  Accordingly, we order that the application for leave be dismissed and that the costs of the application be reserved to the Court of Final Appeal as indicated in paragraph 12 above.