HORSFIELD LESLIE GRANT AND OTHERS v. CHIEF EXECUTIVE OF THE HKSAR AND OTHERS

HCAL 921/2020 &
HCAL 952/2020

[2020] HKCFI 2487

HCAL 921/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 921 OF 2020

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AND

HCAL 952/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 952 OF 2020

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DECISION ON COSTS

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INTRODUCTION

1.  There are two matters relating to costs before the court:

(1)     the Respondents’ application to vary the costs order nisi (namely, there be no order as to costs) made by this court on 20 May 2020 in HCAL 952/2020 (“the Habeas Corpus Proceedings”);

(2)     the costs of the application for leave to apply for judicial review in HCAL 921/2020 (“the JR Proceedings”), which the court granted leave to the Applicant to withdraw on 30 June 2020.

COSTS OF THE HABEAS CORPUS PROCEEDINGS

2.  The background facts and procedural history of these proceedings were set out in the court’s Reasons for Decision dated 22 May 2020, and shall not be repeated here.

3.  On the issue of costs, the court stated, at §45 of the Reasons for Decision, as follows:

“On the issue of costs, although the Applicants have not been successful, the Respondent have failed to comply with the court order relating to the time for the filing of evidence in opposition. In the circumstances, I make an order, on a nisi basis, that there be no order as to costs with respect to the habeas corpus application, including the costs of the hearing before Barnes J on 16 May 2020 and the hearing before this court on 18 May 2020.”

4.  Since the costs order made on 20 May 2020 was a nisi order only and the Respondents have applied to vary the same, the court is entitled to consider the issue of costs afresh.

5.  An award of costs is generally a matter of discretion to be exercised by the court taking into consideration all relevant circumstances.  The prima facie rule is that costs should follow the event, but the court is entitled to take into accounts other matters, including the reason or purpose of the proceedings, the general importance of the issues raised in the proceedings, and the conduct of the parties before as well as during the proceedings in its exercise of discretion on costs.

6.  In this case, although the application was made for the personal benefit of the Applicants, the issues raised in the application are of general importance to many persons in a similar situation who return to Hong Kong from overseas during the present exceptional circumstances arising from the outbreak of COVID-19 globally, including Hong Kong.  While I have rejected the Applicants’ arguments, in particular the contentions that (i) the Chief Executive in Council has no power to make the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation, Cap 599E, and (ii) the decision to quarantine the Applicants at a quarantine centre was arbitrary and violated the Applicants’ right to liberty under BL 26 and BOR 5 and at common law, those arguments are not frivolous.  They are, I consider, reasonably arguable.

7.  There is, I consider, some force in Mr Parker’s submission that the 2^nd Respondent and his staff had failed to reasonably and constructively engage with the Applicants to address their queries and concerns for being required to be undergo quarantine at a designated quarantine centre instead of at their home prior to the commencement of proceedings on 16 May 2020, despite many letters written by the Applicants’ solicitors to various Government departments or officers.  There was only one substantive email sent by Dr Shu to the 2^nd Applicant on 15 May 2020 (referred to in paragraph 11 of the Reasons for Decision handed down on 22 May 2020) which addressed some, but not all of the issues raised.  There was no substantive reply to the letters sent by the Applicants’ solicitors.  I would not, however, criticize the Respondents’ failure to attend the ex parte hearing before Barnes J on 16 May 2020 (Saturday), because it is not in dispute that the Respondents did not have notice of that hearing.

8.  The Respondents did not produce any evidence, even in draft form, at the hearing on 18 May 2020, although they were given notice of that hearing on 16 May 2020.  It must, or ought to, have been obvious to the Respondents that evidence on the matters eventually produced would be crucial in answering the allegations raised by the Applicant, and that was why the court directed the Respondents to file evidence after the hearing on 18 May 2020 so that it could probably consider the Applicant’s various complaints raised in this case.  It is not in dispute that the Respondents failed to comply with the timetable for the filing of evidence by 2:30 pm on 19 May 2020.  I accept that the time given to the Respondents to file evidence was tight.  However, the matter before the court involved the liberty of the person, and the timetable was laid down after discussion with counsel for the Respondents at the hearing on 18 May 2020.  Everyone, including the court, had to work within a constrained timeframe.  The court’s original intention was to give its decision, together with reasons, on 20 May 2020, but that was rendered impracticable by the Respondents’ delay in the filing of evidence (which was only done at about 4:45 pm on 19 May 2020, which led to the Applicants being unable to file reply evidence by 5:30 pm on 19 May 2020).  When the Respondents filed the evidence in the late afternoon on 19 May 2020, they did not give any explanation for the delay, or seek the court’s leave to file evidence out of time.  They simply filed the evidence.  A court order relating to the time for the filing of evidence is meant to be complied with.  If a party is, for any reason, unable to comply with a court order, he should give an explanation for the delay and seek the court’s leave to file the evidence out of time.

9.  I accept that the Applicants might not, in the result, have suffered any substantial prejudice by the Respondents’ delay in the filing of evidence.  This is a relevant factor, but by no means conclusive.

10.  I accept that the evidence filed by the Respondents was useful to the court to resolve the issues before it, but I do not see how that matter assists the Respondents on the issue of costs.  It is hardly to be expected that the Respondents would file useless or irrelevant evidence.

11.  I do not accept that the conduct of the Applicants was unreasonable, or the way in which they presented their complaints were “far from unbiased”.  One should look at the matter from the point of view of a Hong Kong family with young children (aged 22 months, 7 years and 9 years) who, on their return from overseas, found themselves being required to stay in a quarantine centre for 14 days.

12.  I do not attach much weight to the Respondents’ arguments on material non-disclosure at the hearing before Barnes J on 16 May 2020.  Although some of the matters put forward on behalf of the Applicants could have been put clearer, I do not believe that they were of such significance that the outcome of the hearing before Barnes J would have been different.

13.  Overall, I consider it fair that there should be no order as to the costs of the Habeas Corpus Proceedings up to 20 May 2020.

14.  There is, in any event, no proper basis for the Respondents to seek indemnity costs against the Applicants.  The Applicants’ conduct cannot be said to be seriously improper or inappropriate or wholly unreasonable.  Neither can their application be regarded as constituting an “abuse of the process of the court”, or being “scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner” (see Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327, at 1334E-F).  The application is also not so unreasonable that pursuing it is itself unreasonable.  I do not find any special circumstances in the present case which would justify an order for indemnity costs against the Applicants, even if I were minded to award the costs of the application to the Respondents (which I am not).

15.  The Respondents’ summons dated 28 May 2020 is dismissed.

COSTS OF THE JR PROCEEDINGS

16.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled.  In Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, the Court of Final Appeal, after pointing out that the basic principles remain that costs lie in the discretion of the court, stated at §17(2) that: “[s]ince applications for leave to apply for judicial review are, by the rules themselves, meant to proceed on an ex parte basis, the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent or putative interested party unless there are special or unusual circumstances which justify such an award.  The discretion of making an award of such costs should be sparingly exercised.  Good reason will therefore be required in order for the court to make an order in relation to these costs against an applicant”.  In my view, the position is not different where an applicant withdraws his application for leave to apply for judicial review, at any rate in a situation where the application has been overtaken by subsequent events as in the present case.

17.  I do not accept that the matters raised by Mr Lui in §§15 to 19 of his written submissions dated 8 September 2020, either singly or cumulatively, amount to such special or unusual circumstances as would justify a departure from the general rule that there should be no order as to the costs of an unsuccessful application for leave to apply for judicial review.

18.  It is, I consider, significant, as accepted by Mr Lui at §19.4(2) of his submissions that “the reality was simply that both applications were premised on the same set of facts and arguments”.  It is, I believe, unlikely that any, or any substantial costs, have been incurred by the Respondents on account of the JR Proceedings only.  Mr Lui has not pointed to any.

19.  In all, I make an order that there be no order as to costs in relation to the JR Proceedings (subject to paragraph 20 below).

20.  The Applicants shall have the costs of the applications today, which are summarily assessed at HK$60,000.