FARMAN v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 4463/2023

[2025] HKDC 112

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4463 OF 2023

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DECISION

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INTRODUCTION

1.  This is an application made by the plaintiff (“P”) by way of an inter-parte summons dated 12 September 2024 (“the Summons”) to vary the costs order nisi made by me in the decision of an appeal against a master’s decision which was handed down on 30 August 2024: See Farman v Secretary for Justice sued for and on behalf of Director of Immigration [2024] 4 HKLRD 566, DCCJ 4463/2023 (30 August 2024) (“the Decision”). In the Decision, I allowed the defendant’s appeal against the Master’s decision.

2.  At the end of the Decision, I made an order nisi that the plaintiff (“P”) should bear the costs of and occasioned by the appeal and that such costs shall be summarily assessed by the court by way of paper disposal. I also ordered that if any party wishes to vary the costs order nisi, they should do so by way of summons within 14 days after the handing down of the Decision: See §§53 & 54 of the Decision.

3.  Despite P was clearly the losing party in the appeal which was brought by the defendant (“D”), P’s solicitors still saw fit to issue the Summons to ask the court to vary the costs order in the following manner:-

“1. The costs order nisi made in the Decision made by His Honour Judge Andrew Li dated 30 August 2024 (hereinafter referred to as "the Decision") be varied in accordance with the Order sought as follows:-

(i) The costs of this action be paid by the Defendant to the Plaintiff on a party and party basis at the District Court scale, and be summarily assessed by the Court at HK$15,000.00 being payable by the Defendant to the Plaintiff within 28 days from the date of the Order to be made herein;

(ii) There be no order as to the costs of and occasioned by the appeal by the Defendant, including the Consent Summons filed on 20 December 2023 and the Referral Summons; the hearings before the Master on 15 January 2024, 26 February 2024 and the hearing before His Honour Judge Andrew Li dated 17 June 2024.

2. Costs of this application be to the Plaintiff, summarily assessed by the Court.”

DISCUSSION

4.  The Summons was originally scheduled to be heard by me on Thursday, 24 October 2024. However, due to the fact that P’s solicitors had asked one of their clerks to prepare the hearing bundle and arrange to lodge it with the court, it was lodged out of time. In fact, the hearing bundle was not lodged with the court until 5:18pm on the day before the hearing. Hence, the court did not have sufficient time to prepare for the case at all. As a result, the hearing was adjourned for a few days to Monday, 28 October 2024 for argument (with 2 hours reserved). I ordered the costs wasted as a result of the adjournment caused by P solicitors’ failure to lodge the hearing bundle in accordance with the provisions of Practice Direction 5.4 to be borne personally by P’s solicitors. Mr Mok Yiu Wang (“Mr Mok”), the principal of P’s solicitors, had no objection to that. The wasted costs was therefore summarily assessed at HK$6,900 which was ordered to be paid forthwith by P’s solicitors to D.

P’s Submissions

5.  P’s solicitors have filed 2 skeleton submissions to support P’s application under the Summons. They were respectively dated 17 October 2024 (“P’s 1^st Submission”) and 24 October 2024 (“P’s 2^nd Submission”). P’s solicitors have also filed an affidavit in support of the application. It was made by Mr Mok, the principal of P’s solicitors, rather than P himself. It was filed on 3 October 2024 (“Mok’s Affidavit”).

6.  Despite the fact that P was the losing party in the appeal, under the Summons, Mr Mok has boldly asked for the costs of the action be paid by D to P “on a party and party basis at the District Court scale, and be summarily assessed by the Court at HK$15,000.00.”: See §1(i) of the Summons.

7.  Further, under the Summons, P seeks for an order that there will be “no costs as to the costs of and occasioned by the appeal by (D), including the Consent Summons filed on 20 December 2023 and the Referral Summons; the hearings before the Master on 15 January 2024, 26 February 2024 and the hearing before His Honour Judge Andrew Li dated 17 June 2024.”: See §1(ii) of the Summons.

8.  Lastly, P also asks for the costs of the application be granted to him, which he says should be summarily assessed by the court: See §2 of the Summons.

9.  Unsurprisingly perhaps, less than 3 weeks after issuing the Summons, P decided not to pursue further with §1(i) of the Summons, ie the costs of the action at HK$15,000, allegedly based on the advice of his solicitors: See §3 of P’s 1^st Affidavit.

10.  The gist of P’s Submissions in essence is a repetition of the submissions made by P in the appeal brought by D against the Master’s decision. I had already dealt with those submissions in detail in the Decision. In my judgment, P’s 1^st Submission, which incidentally contains no authorities or established legal principles on which it was based on, has been totally misconceived and without any merit.

11.  In my view, P’s 2^nd Submission is not much better. Mr Mok has simply repeated P’s 1^st Submission and relied on Mok’s Affidavit and the documents contained in the hearing bundle lodged with the court on 23 October 2024 but “make no further submission”. Mr Mok then went on to state that they “shall leave this matter in the good hands of the Honourable Judge to determine.”

12.  As to whether P’s solicitors should personally bear the costs of any part of proceedings, Mr Mok submits that he should not bear those costs of the proceedings “up to the point when they rejected the proposal of DOJ to refer the costs matter to be determined by a Judge”. P’s reason is that up to that point in the proceedings, both P and his solicitors “truly believe that the Master would have enough authority and discretion to deal with the matter.”. They considered that it would be unnecessary to refer the matter to be determined by a judge in order to waste further time and costs. Further, regarding other part of the proceedings, P’s submits that his solicitors have acted “promptly and reasonably throughout the whole proceedings and there was not serious misconduct happened in the proceedings.”. Again, Mr Mok stated in the 2^nd Submission that they “shall leave this matter in the good hands of the Honourable Judge to determine also.”

13.  Again, no legal principles or authorities have been cited to support P’s above submissions.

The Court’s decision at the hearing on 28 October 2024

14.  At the end of the hearing of the Summons on 28 October 2024, I made the following orders and directions:-

“(1) Having read D’s written submissions and heard Ms Chan for D’s oral submissions in Court, including the speaking notes submitted to the Court at today’s hearing, I have no hesitation to dismiss P’s summons filed on 13 September 2024 to vary the costs order nisi made under the Court’s decision dated 30 August 2024 (“the Summons”).

(2) I will therefore make an order hereby to dismiss the Summons with costs in favour of D, such costs is hereby summarily assessed at HK$85,000 to be paid forthwith by P.

(3) The reasons for my decision will be reduced into writing and will be handed down in due course on or before Friday, 24 January 2025 under the provisions of PD 37.

(4) Having looked at P’s written submissions and heard what Mr Mok for P had submitted orally to the Court today, it is abundantly clear to the Court that the present application taken out by P to vary the costs order nisi under the decision of the Court on the appeal dated 30 August 2024 is completely devoid of merits, baseless and has been ill conceived.

(5) The Court considers that it is a completely waste of time and costs, not only for the Court itself but also for the DOJ who represents the defendant in this case. Mr Mok, the principal of the solicitor firm, who represents P in this application has effectively conceded as much during his oral submissions today.

(6) Hence, it appears to the Court that this whole application has been caused by the unfounded and ill-conceived advice of P’s legal representative, namely, P’s solicitors in this case.

(7) In my view, this renders the whole application a completely costs wasting exercise and a wasting of the government lawyers’ time and the court’s valuable resources.

(8) For those reasons, I am going to direct the plaintiff’s solicitor, namely Mr Mok Yiu Wang of Messrs Y W Mok & Co to show cause in writing within 14 days from today as to why he should not personally bear the costs of this application, including the costs of issuing the Summons and the hearing today under O 62, r 8 of the Rules of the District Court (“RDC”). I will also direct that P’s solicitor should show cause as to why he should not repay P the costs of the appeal which this Court has ordered to be paid by his client, ie P himself under O 62, r 8(2)(b) of the RDC.

(9) The Court will make the ruling as to whether P’s solicitor should bear such costs personally and on an indemnity basis in the written reasons for decision which it is doing to hand down later as mentioned above, including to summarily assess those costs on paper if appropriate.

(10) All future interlocutory applications in this case will be reserved to be dealt with by this Court.”

P’s solicitors further submissions

15.  Pursuant to §8 of my order and directions on 28 October 2024, P’s solicitors had, on 11 November 2024, lodged with the court a further skeleton submission to “show cause” as to why they should not be held personally liable and to bear the costs of the application, including the costs of issuing the Summons and the hearing on 28 October 2024.

16.  With respect to P’s solicitors, it contains nothing new except to say that there was neither any improper nor unreasonable act of conduct of a part of P’s solicitors throughout the proceedings to justify P’s solicitors to bear the costs personally.

The Court’s Decision on whether P’s solicitors should personally bear the costs

17.  In my judgment, the Summons with the aim to vary the costs orders contained in the Decision has been totally misconceived and without any foundation. It is beyond any shadow of doubt that P, being the losing party of the appeal, should be held liable to pay for the costs of issuing the Summons which had been fully argued before the court. In my judgment, the application was clearly made on the advice of P’s solicitors without any proper legal foundation or authorities. The bold attempt to try to claim the costs of the action at HK$15,000 which was initially stated in the Summons but was withdrawn before the first scheduled hearing, shows that it obviously was baseless. P had been badly advised and P’s solicitors had no foundation to seek for such variation in the first place. The only saving grace was that it had been withdrawn under P’s Affidavit. However, the rest of the Summons was also completely hopeless and without any proper basis. As such, I consider that P’s solicitors should be ordered to personally bear the wasted costs for issuing the Summons as well as for the hearing on 28 October 2024. Hence, the wasted costs which had been summarily assessed at HK$85,000 in my judgment should be borne by P’s solicitors to be paid forthwith. I so make such an order.