YAM YING HUNG AND OTHERS v. SECRETARY FOR JUSTICE

HCMP2988/2003 (No.2)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2988 OF 2003

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JUDGMENT  (NO.2)

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1. This is an application of the applicants pursuant to my judgment of 3 June 2004 for an order that the order nisi of no order as to costs should be substituted by an order that the respondent, Secretary for Justice, shall bear the costs of the applicants.  I have the benefit of the written submissions from both parties in lieu of open court hearing.

2. In my original judgment I have said that the capacity of the respondent was to assist the court rather than a contentious litigant.  Her appearance was in a sense acting as amicus curiae.  This is, however, not part and parcel of the reason of the decision I have made in reaching my conclusion.  In other words this is not the substantive decision made for the purpose of the judgment. 

3. The position of the respondent has never been argued for the purpose of the costs order.  In reconsidering the respondent’s position it would not amount to revisiting the substantive decision the court has made.  It was submitted by counsel for the respondent that such course should not be allowed — see paragraph 42/5B/1 of the Hong Kong Civil Procedure 2004 as decided in the case of Yaacov Ozer v. Kwan Siu Man (No.2) [1998] 2 HKLRD 1001, CA.

4. In the consideration of what appropriate costs order should be made herein, it is inevitable to reconsider the position of the respondent in these proceedings.

5. The respondent was joined in at the suggestion of the court since the respondent is an interested party.  It was clear from the very beginning that should the applicants be unable to claim the estate of the deceased, the estate would become bona vacantia.   As such the Government would be entitled to the estate.  The court has enquired from the outset as to whether the respondent would claim bona vacantia or would state its position clear that it would not claimed any part of the estate should the applicants failed in the application.  However, Mr Wong for the respondent said he has no instructions from the administration to state that they would not be claiming the estate.  He further pointed out that in the event they should fail in the application herein, they would have to make an application to the Administrative Government pursuant to section 4(9) of the IEO.

6. Accordingly, it is true to say, as submitted by counsel for the applicants, that the respondent has been contesting the application from the beginning (i.e. from the acknowledgement of service dated 30 September 2003) up to the very end of the hearing of the proceedings.  Should my decision go to the contrary, the Government would be benefited since the estate would become bona vacantia. 

7. Accordingly, I agree with the submission of counsel for the applicants Mr Simon Lam that the position in this case is different from the two cases relied on by counsel for the respondent and they are : Wong Shuk-ying and Anor v. Attorney General [1987] HKLR 985 and Yip Yat-tim, the administratrix of the estate of Yu Koon-wan v. Secretary for Justice, HCMP3585/2000 decided on 11 October 2000 (unreported).  In the aforesaid two cases cited, counsel for the respondent i.e. the then Attorney General and later the Secretary for Justice, stated very clearly that they were not contesting the application and they were joined as a party as a matter of formality only.  The respondent therein was not opposing the application. 

8. Accordingly, I accept the submission of counsel for the applicants that this is in fact a contentious litigation and the usual costs order should follow i.e. costs should follow the event.

9. In conclusion, I consider that the fairer costs order is that the applicants should have costs of the proceedings from the respondent, to be taxed if not agreed.