KWOK CHEUK KIN v. CHIEF EXECUTIVE IN COUNCIL

HCAL 1978/2023

[2024] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1978 OF 2023

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D E C I S I O N

O N    C O S T S

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A.  Introduction

1.  By my Judgment dated 1 December 2023, [2023] HKCFI 3074, following a ‘rolled-up’ hearing, I granted to the Applicant leave to apply for judicial review (with the necessary extension of time for so doing), but I dismissed the substantive application for judicial review upon full consideration of the merits.

2.  I reserved all questions of costs to be determined by me on paper submissions, which have since been filed. They have been filed by the same teams of Counsel as so ably argued the substantive application, namely Mr Jenkin Suen SC leading Mr Michael Lok of Counsel for the Government, and Mr Anson Wong Yu Yat and Mr Jonathan Ip of Counsel for the Applicant.

3.  In short, the Government submits that the costs of the judicial review should be borne by the Applicant, with certificate for two Counsel, whilst the Applicant submits that there should be no order as to costs.

4.  Having considered those submissions, this is my Decision on Costs.

B.  Applicable Principles

5.  The applicable legal principles on costs in public law cases are well-settled and well known – including in what is called ‘public interest litigation’.

6.  In Fung Ping Sum Connie v Appeal Panel (Estate Agents Ordinance) [2022] 1 HKLRD 1435 at §10, I offered the following summary of those principles:

(1)  The starting point remains the usual position that costs will follow the event.

(2)  However, depending on the particular circumstances of the case, the principles regarding ‘public interest litigation’ may justify a departure from the usual order.

(3)  The three criteria of ‘public interest litigation’ are:

(a)  the litigant has properly brought proceedings to seek guidance from the court on a point of general public importance, so that the litigation is for the benefit of the community as a whole, to warrant the costs of the litigation being borne by the public purse as costs incidental to good public administration;

(b)  the judicial decision has contributed to the proper understanding of the law in question; and

(c)  the litigant has no private gain in the outcome.

(4)  The criterion of contribution to the proper understanding of the law is not limited to issues where the legal principles have not been settled and thus need further development or clarification. The criterion should cover a question of how the relevant law is applied to a particular set of facts.

(5)  Similarly, the second requirement that the judicial decision required to be made in the litigation should contribute to the proper understanding of the law in question is not limited to only resolution of issues that involve difficult or unsettled legal principles.

(6)  Nor is there any absolute standard by which to define what amounts to an issue of general public importance. The question is ultimately a matter of degree, where identifying it is an objective exercise and where the court would pay regard to the qualitative significance of the issues at stake.

(7)  Nevertheless, it must be emphasised that, other than the overarching twin criteria of public interest litigation, the other factors (including the merits, the existence or otherwise of a private interest, the relative financial resources of the applicant and respondent, the reasonableness of the applicant in approach, etc) are all matters that the court could take into account in its exercise of discretion to decide whether it is just and fair to depart from the usual position that costs follow the event.

(8)  For example, however important the point in issue may be in a public interest litigation case, a lack of merits will rarely (if ever) save a party from an adverse order for costs. Hence, the evaluation of merits and the conduct of the parties is part of the consideration as to whether or not the litigation really concerned a matter of sufficient public importance.

(9)  In a ‘rolled-up’ hearing, where the applicant is ultimately unsuccessful but where the court identifies that the applications were reasonably arguable to justify the grant of leave, that may (depending on the particular circumstances) justify a departure from the usual order.

(10)  But, if an applicant cannot satisfy the minimum threshold for grant of leave to apply for judicial review, the applicant will ordinarily not be able to contend that canvassing his arguments in court is or was in furtherance of public interest.

7.  Those are the principles to be applied to this case.

C.  Submissions

8.  Mr Suen makes the following broad submissions:

(1)  Whilst the subject matter of this litigation attracted public attention, it cannot be said that the proceedings were properly brought for the benefit of the community as a whole.

(2)  Whilst the Judgment recognised that the best course overall in the wider public interest was to deal with the challenge on its merits, the ‘can of worms’ which had been opened had been opened by the Applicant himself – a person whose individual standing to bring the application was at best doubtful.

(3)  An applicant cannot self-engineer any professed doubt in the constitutionality of a piece of legislation and then contend it is in the public interest that he is allowed to proceed with the judicial review at taxpayers’ expense.

(4)  The proceedings did not involve seeking the Court’s guidance on any legal issues, as assessing the constitutionality of the Nomination Requirement merely required the Court to apply well-settled principles of law to the relevant context.

(5)  It cannot be said that the Applicant has no personal gain in the outcome, where he had adopted a “wait-and-see” approach to see whether the Nomination Requirement might nevertheless have led to a group of validly nominated candidates who might be regarded (at least by the Applicant himself) as sufficiently diverse and representative to permit genuine choice. If the Applicant had been successful on the judicial review, then on his own hypothesis he would personally benefit from potentially being able to find a group of validly nominated candidates acceptable to himself.

(6)  Insofar as is necessary, the merits of the judicial review is also a potentially relevant consideration – where, for costs, the applicant’s case should have a real prospect of success in being properly arguable, a higher threshold than that for the grant of leave for judicial review. This is because questions relating to the incidence of costs arises at a different stage.

(7)  The Court should take into account that the Applicant had himself written to the Court expressing some equivocation as to whether he should proceed with the application or withdraw it.

(8)  The fact that leave to apply for judicial review was ultimately granted should not detract from the above submissions, and is insufficient to prevent the usual order of costs being made.

(9)  The Court should also take into account specific other circumstances, being: (a) the Applicant’s standing was thought to be at best doubtful; (b) the Applicant was found to have been perhaps less than full and frank, particularly in the context of his standing; (c) that criticism arose notwithstanding the Applicant had previously been criticised for a similar failure to be full and frank; (d) the Applicant failed to act promptly, instead consciously choosing delay.

(10)  The Court should take care to avoid making no order as to costs, as that would inevitably create an impression that applicants for judicial review can fail to comply with procedural rules and requirements on frankness with impunity.

(11)  In the particular circumstances, even if the Court chooses not to award all of the Government’s costs against the Applicant, the Court should nevertheless order the Applicant to bear a substantial portion of them – where substantial time was incurred on the arguments as to standing and delay, and the indulgence of an extension of time was required.

9.  Mr Wong makes the following broad submissions:

(1)  The three ‘public interest litigation’ criteria (see above) are plainly all satisfied in the present case.

(2)  The issue raised was obviously of general public importance for the benefit of the community as a whole, which is why the Court held that it should be addressed head-on at the first available occasion for the Court so to do, and where a constitutional challenge lies at the core of the rule of law.

(3)  The Applicant stood to obtain no personal private gain from the outcome of the application.

(4)  In granting the Applicant leave and an extension of time, the Court also recognised that the intended application for judicial review was reasonably arguable and had a realistic prospect of success.

(5)  On the subsequently appropriate discretionary balancing exercise, a number of further points fall to be considered.

(6)  The Applicant had not accepted all of the evidence produced by the Government on the issue of his standing, and chose not to file further evidence as it was unlikely to assist the Court, not least where public interest standing was relied upon. Though the Applicant may have moved from his registered address, the fact that he did not update his address with the REO may not have been improper, even according to the REO’s own Guidelines.

(7)  Despite the undue delay, and the Court’s general discouragement of a “wait-and-see” approach, it can be noted that (a) no other person made a challenge along the lines of the application, despite the lapse of time since the taking effect of the 2023 Amendment Ordnance, (b) once the application was made, it remained necessary for the Court’s clarification of the constitutional question recognised as important and meritorious; (c) the application presented a relatively early opportunity for the Court to determine the constitutionality question, namely before the DC Election, rather than awaiting any post-election challenge, and (d) the evidence demonstrating the surprising effect of the impugned Nomination Requirement, which reasonably made the public interest of bringing a challenge more compelling, was not available before the close of the nomination for the Election on 30 October 2023, just one week before the commencement of the application for leave to apply for judicial review.

10.  I take these various submissions into the balance in my consideration.

D.  Decision

11.  In my view, the discretionary exercise in this case is relatively finally balanced.

12.  The application was ultimately unsuccessful, and so the starting point is that costs would ordinarily follow the event.

13.  There is also considerable force in the points made for the Government that the conduct of the Applicant himself, in failing to comply with procedural rules and possibly the requirements as to frankness, should not lead to a costs order which creates an impression that such litigation behaviour can be adopted with impunity. Those matters seem to me to weigh strongly in the balance in favour of at least a partial costs order and against a no costs order. It is entirely correct for Mr Suen to sound the warning against creating the wrong impression that applicants can act inappropriately yet face no costs consequences. In almost all cases, they cannot.

14.  However, ultimately I am persuaded that the balance of all of the various matters to be taken into account in this case should lead to a no costs order.

15.  First, I accept that the three criteria of ‘public interest litigation’ are satisfied.

(1)  The proceedings were properly brought to seek guidance from the Court on a point of general public interest, for the benefit of the community as a whole, where the constitutionality challenge lies at the core of the rule of law in the important context of the public electoral process.

(2)  The Judgment in this case, where I took some care to set the question against the historical context of the relevant electoral process has, I hope, contributed to the proper understanding of the law in question.

(3)  I reject the suggestion that the Applicant had some private gain in the outcome, simply because a different group of validly nominated candidates might have been acceptable to the Applicant himself. That potential acceptability does not seem to me to amount to a relevant personal gain in this context.

16.  Secondly, even if it is thought that the proceedings did not involve seeking the Court’s guidance on any legal issues, but merely assessing the constitutionality of the Nomination Requirement by applying well-settled principles of law to the relevant context, the criterion relating to the proper understanding of the law is not limited to issues where the legal principles have not been settled, and can cover a question of how the relevant law is applied to a particular set of facts.

17.  Thirdly, the merits are relevant in that I granted leave to apply for judicial review, having formed the view that the challenge was at least reasonably arguable with reasonable prospects of success. That seems to me to emphasise that the challenge was worthy of proper consideration by the Court in the context of a constitutional challenge to the electoral process. Though the grant of leave of course does not necessarily change the usual order of costs following the event of the refusal of the substantive application, the context of the constitutional challenge and the satisfaction of the criteria relating to ‘public interest litigation’ are in play.

18.  Fourthly, as to the timing of the application, though I indeed criticised the delay by the Applicant, I also rejected the Government’s suggestion that the Court should refuse to grapple with the constitutional issue raised. It seemed to me to be obviously in the wider public interest for the point to be ‘put to bed’ one way or the other prior to the DC Election taking place. There is also something in the point made on behalf of the Applicant that the actual results of the Nomination Requirement – i.e. what its factual impact was on who could obtain nomination – further elucidated the overall context for the Court’s consideration.

19.  Indeed, ultimately the challenge was to a revised electoral process, which was itself adopted as part of a wider shift in policy or emphasis, and which revision was at first blush a reversal of the direction historically taken in the development of the particular electoral process in question. The proper role of DCs and their members, as a matter of law, was the focus of dealing with the challenge. Resolving the constitutional challenge therefore was apposite, and for the Government to bear the costs of meeting that challenge seems to me to be appropriate – as perhaps but part (and probably a rather insignificant part) of the overall Government expenditure in the context of this particular electoral process.

20.  In short, balancing the various discretionary factors, I conclude that the appropriate costs order to make in the circumstances of this case is no order as to costs.