LI CHIU WAH JOSEPH v. HONG KONG SOCIETY OF NOTARIES

HCAL 2658/2019

[2020] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2658 OF 2019

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DECISION ON APPLICATION TO VARY
THE COSTS ORDER NISI

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INTRODUCTION

1.  After the “rolled-up” hearing on 24 April 2020, this court handed down the Judgement (“the Judgement”) on 30 July 2020 dismissing the Applicant’s application for leave to apply judicial review in part and dismissed the substantive application on merits.  In summary, this court held that:  

(i)    Part (1) of the Society Decision was not amendable to judicial review and leave was refused with respect to that part;

(ii)   Part (2) of the Society’s Decision was amendable to judicial review;

(iii)  leave was granted for Part (2) of the Society’s Decision with respect to contentions (b) – (d) of the illegality ground.

(iv)  leave was refused on the other contentions or grounds.  

There was also an order nisi that the Society shall have the costs of these proceedings, to be taxed if not agreed.  

2.  By a summons dated 10 August 2020, the Applicant applies to vary the costs order nisi.  It is asked that the Applicant is to pay “50% or less as the Court thinks fits of these proceedings, to be taxed if not agreed”.  By consent, this application is to be dealt with by way of paper disposal.  This Decision should be read with the Judgment.

LEGAL PRINCIPLES

3.  The relevant legal principles on costs in judicial review proceedings are set out in Leung Kwok Hung v President of the Legislative Council (No 2)[1]. Generally speaking, costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant.  However, since applications for leave to apply for judicial review are, by the rules, meant to proceed on an ex parte basis, the general rule should be that in a contested leave application, the 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.

4.  In Suen Mo Joel v Director of Social Welfare[2], Au J (as he then was) held that:

“this general position on costs in a contested unsuccessful leave application should as a matter of principle apply at least equally to a case where the applicant is in fact successful in the leave application, although he has lost subsequently in the substantive judicial review. This is also so as, barring exceptional circumstances, it would be odd to suggest that, in term of his liability for the putative respondent’s costs, an applicant would be worse off when he is successful in obtaining leave than when he is unsuccessful.”

5.  I agree with the Applicant’s submission that although Suen Mo Joel did not concern a rolled-up hearing, there is no reason why the same principles should not, in appropriate factual situations, apply to allow some costs to be apportioned for a successful leave application in a rolled-up hearing.

6.  However, there is no general rule that whenever a successful party fails on some issues, the court must assess the costs of each issue separately to deprive him of some costs: Lo Yuk Siu v Fubon Bank (Hong Kong) Ltd[3].

7.  Apart from the above, there is also the public interest litigation factor identified in Chu Hoi Dick v Secretary for Home Affairs[4] and explained in Leung Hon Wai v Director of Environmental Protection[5] which may operate to prevent a costs order being made against an unsuccessful applicant. 

8.  Ultimately, costs is a matter of discretion and the court is entitled to take into account of the fact that the applicant effectively had a full substantive hearing of his judicial review challenge: MST v Duty Lawyer Service[6].

CONSIDERATION

9.  Bearing the above legal principles in mind, I have considered the issues raised, how they were argued before me, the generally feel of the case.  In particular, I take into account the following which is in favour of the Applicant:

(1)  leave was in fact granted to the Applicant on the illegality ground in part;

(2)  the illegality ground took up a substantial portion of the parties’ respective submissions;

(3)  the substantive application was refused on merits, partly by having considered the affirmation evidence filed on behalf of the Society; and

(4)  the applicant serves some extent to clarify the law on the Society’s scope and exercise of power to impose the administrative charge on notaries public and to enforce it through a “conditional decision”.

On the other hand, I also take into account the following which are in favour of the Respondent:

(5)  there were issues raised in the Applicant’s leave application which were plainly without merits;

(6)  the Applicant was not without self-interest in taking out the application; and

(7)  the public interest entailed was relatively narrow in that the pool of people affected (all of them notaries public practising in Hong Kong) is small and the level of the Late Charge in question is low (namely a fixed sum of HK$3,000).

ORDER

10.  Having looked at the matter in the round, by adopting a broad brush approach, I order that the costs order nisi be varied and I make a costs order absolute that the Applicant is to pay 80% of the Society’s costs of these proceedings, to be taxed if not agreed. 

11.  I also order that there be no costs of this application for variation.