FACV No. 1 of 2014

IpsofactoJ.com: International Cases [2014] Part 10 Case 5 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

K.H. Leung

- vs -

President of the LegCo

(Legislative Council of the Hong Kong SAR)

CHIEF JUSTICE GEOFFREY MA

JUSTICE R.A.V. RIBEIRO PJ

JUSTICE ROBERT TANG PJ

JUSTICE JOSEPH FOK PJ

SIR ANTHONY MASON NPJ

29 SEPTEMBER 2014


Reasons

The Court

  1. On 10 September 2014 we dismissed this appeal at the end of the appellant’s argument, without calling on the putative respondent and the putative intervener and announced that our reasons for judgment would be published on a date to be notified. We also ordered that the parties file and serve written submissions as to costs within fourteen days of the publication of our reasons. The paragraphs which follow set out our reasons for judgment. 

    The questions arising in the this appeal

  2. This appeal raises two questions of fundamental importance. They relate to the amenability of the processes of the Legislative Council (“the LegCo”), in particular decisions made by its President in the course of the legislative process, to review by the courts of Hong Kong.

  3. The Appeal Committee of this Court granted the appellant, who is a member of the Council, leave to appeal from a decision of the Court of Appeal on the basis that the following two questions of great general or public importance are involved in this appeal:

    1. Having regard to the Basic Law (“BL”) and the Rules of Procedure (“the Rules”) of the LegCo, under what circumstances may a decision of the President of the LegCo made during the legislative process be judicially reviewed?

    2. In light of the answer to the 1st Question above, is the decision of the President of the LegCo on 17 May 2012 to close the debate of the committee of the whole Council on the amendments to the Legislative Council (Amendment) Bill 2012 (“the Bill”), purportedly pursuant to Article 72(1) of the BL and Rule 92 of the Rules, amenable to judicial review?

    The facts

  4. For the purpose of these reasons, it is sufficient to state the facts as they were recorded in the judgment of Cheung CJHC.

  5. The Bill was introduced by the Administration into the LegCo for first reading on 8 February 2012. The object of the Bill was to disqualify a person who has resigned as a member of the LegCo from standing for a by‑election to be held within 6 months of his resignation. After the second reading of the Bill was moved, it was adjourned under rule 54(4) of the Rules of the LegCo. The Bill was then referred to the House Committee, which set up a Bills Committee to study the Bill. The debate on the Bill before the Council was scheduled to resume on 2 May 2012. In the meantime, two LegCo members had been given permission by the President of the LegCo (“the President”) to move respectively 1,232 and 74 committee stage amendments to the Bill at the resumed debate. The 1,232 amendments proposed by the first member dealt with six themes – five were concerned with situations where the disqualification would not apply and the sixth proposed a reduction of the disqualification period. As for the 74 amendments proposed by the second member, they sought to improve on the language of the Chinese text of the Bill.

  6. The avowed intention of the two legislators and their ally, the appellant (also a legislator), for the introduction of these numerous amendments was to filibuster the Bill, which they opposed and which they apprehended would otherwise be passed by the majority in the Council.

  7. The motion for the second reading of the Bill was passed on 2 May 2012 after a debate that lasted 8 hours 39 minutes. The Committee stage of the Bill before the whole Council commenced the next day at 9:00 am but was adjourned as the meeting lacked a quorum. The Committee of the whole Council resumed to deal with the Bill in the late afternoon of 9 May 2012. There was a motion to adjourn the proceedings of the Committee which was eventually negatived after a debate that took 4 hours and 29 minutes and straddled two days. The Committee then proceeded to debate on the clauses of the Bill and all the committee stage amendments.

  8. The debate took place at meetings of the Committee of the whole Council which were, in accordance with the Rules, presided over by the President as chairman.

  9. By 4:30 am on 17 May 2012, the debate had gone on for over 33 hours and still no end to the debate was in sight. The President had on numerous occasions considered the speeches made by the filibusters (the appellant was one of them) which were irrelevant to the clauses and amendments, and had made decisions and rulings accordingly. In this situation, a Legislative Councillor made reference to the procedure called “closure motion” in other legislative bodies and suggested the President should conclude the debate immediately.

  10. The President reviewed the situation and indicated his inclination to allow the members and the Government official who had also proposed a committee stage amendment to give concluding speeches and then end the debate. After hearing views from members further, the President announced his decision to that effect at 9:00 am on the same day (17 May 2012), and gave all those involved until 12:00 noon to conclude the debate. He based his decision on rule 92 of the Rules which relevantly provides that “in any matter not provided for” in those rules, the practice and procedure to be followed shall be as decided by the President. The debate duly ended at noon time. Thereafter, the amendments to the Bill proposed by the legislators were put to vote. They were all defeated. The voting itself took several days to complete. The Bill eventually became law on 1 June 2012.

    The proceedings in the courts below

  11. Aggrieved by the President’s decision to end the debate and thus the filibustering exercise, the appellant sought leave to apply for judicial review of the President’s decision on the same day. After an urgent oral hearing attended by all parties concerned (including the Secretary for Justice as interested party) on 17 and 18 May 2012, Lam J announced his decision to refuse leave on 19 May 2012. He gave his written reasons on 25 May 2012, before the passage of the Bill on 1 June 2012. 

  12. Lam J refused leave to apply for judicial review, giving comprehensive reasons for the refusal of leave. He rejected the appellant’s argument that art 73(1) of the BL conferred a constitutional right to participate in the legislative processes of LegCo on a member of LegCo and also required the courts to exercise jurisdiction to review the procedural regularity of those processes, and held that, even if the Appellant had a good case for constitutional challenge, there was no reason for the court to entertain it at the pre-enactment stage. After consideration of written submissions lodged by the parties, his Lordship ordered the appellant to pay the President’s costs of the application and made no order as to costs between the appellant and the Secretary for Justice.

  13. The appellant appealed to the Court of Appeal against the orders made by Lam J. The appellant’s notice of appeal was filed on 2 June 2012, the day after the passage of the Bill on 1 June 2012. A consequence of these events was that the appellant’s challenge to the President’s decision to terminate the debate was treated as having beenconverted from a pre-enactment challenge to the President’s decision to close the debate under rule 92 to a post-enactment challenge to the validity of the Legislative Council (Amendment) Act 2012 based on the alleged invalidity of the President’s decision.

  14. The Court of Appeal unanimously dismissed the appeal and ordered the appellant to pay the costs of both respondent and intervener. The principal judgment was delivered by Cheung CJHC, with Kwan JA agreeing and Poon J agreeing in a short separate judgment. In the Court of Appeal, the appellant submitted, as he had submitted before Lam J, that, as a member of LegCo, he had a right under the BL and the Rules to participate in the processes of LegCo, that the President’s decision to close the debate denied this right and that the superior courts of Hong Kong have jurisdiction to review the processes of LegCo. The Court of Appeal rejected this submission, as Lam J had done at first instance, rejecting the appellant’s arguments based on art 73(1) of the BL and applying the principle that the courts do not intervene to review the internal processes of the legislature. The Court of Appeal refrained from expressing any view on rule 92 and the other rules referred to in argument.

    The appellant’s argument in this Court

  15. Mr Martin Lee, SC for the appellant submitted that art 73(1) confers on the appellant as a member of LegCo a right to participate in the legislative processes of LegCo and makes compliance with the provisions of the BL and the Rules a condition of the validity of legislation enacted by LegCo. The next step in his argument was to say that rule 92 conferred no power on the President to close the debate and that, accordingly, non-compliance with the Rules vitiated the amendments which were subsequently enacted because art 73(1) stipulates that laws be made “in accordance with the provisions of this Law and legal procedures”.

  16. The appellant’s argument in this Court differs from the argument presented for the appellant in the courts below in that the case presented here draws on the case law of the Israeli High Court of Justice on the Israeli Basic Law: The Knesset (1958) and the Israeli Basic Law: The Judiciary (1984). According to the appellant, the Israeli cases show that Israel has recognized that a member of the Knesset, the Israeli legislature, has a right to participate in the legislative processes of the legislature and has rejected the English approach that parliamentary proceedings are excluded from the range of judicial review. Instead, the Israeli High Court of Justice has adopted as the test for judicial intervention in the legislative process the question whether the defect that has occurred in the legislative process is a defect that goes to the heart of the process. There was in this case, so the appellant submitted, such a defect because the President was not entitled to rely on rule 92.

  17. On the other hand, according to the printed cases of the putative respondent (“respondent”) and the putative intervener (“intervener”) the appellant should not be permitted to rely in this Court for the first time on the Israeli jurisprudence and the recognition in that jurisprudence of the principle that the courts will intervene to redress a defect that has occurred in the legislative process which goes to the heart of the process. To permit the appellant to do so, so the respondent and the intervener contended, would be to allow the appellant to raise new matter which was not considered by the courts below. According to the printed cases of the respondent and the intervener, the Israeli decisions should not be followed in Hong Kong because they are at variance with accepted common law principle and consequently both Lam J and the Court of Appeal were correct in rejecting the appellant’s case.

  18. Because we came to the conclusion at the end of the appellant’s argument that the appeal must fail, even if the appellant’s reliance on the Israeli jurisprudence were taken into account, we did not call on the respondent and the intervener. It follows that we did not hear them in support of their preliminary objection to the use of the Israeli materials by the appellant. It is therefore important that we make the point that we have assumed, without deciding, that those materials are properly before the court in support of the appellant’s case. Later in these reasons, we state the grounds for our conclusion that as a matter of common law principle and public policy the case for the adoption of the Israeli jurisprudence is not compelling.

    Article 73(1): Does it confer a right on the appellant to participate in the legislative processes of LegCo?

  19. Art 73(1) provides:

    The Legislative Council of the Hong Kong Special Administrative Region shall exercise the following powers and functions;

    (1)

    To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures.

    The expression “legal procedures” plainly includes the Rules.

  20. In seeking to extract from this provision the conferring of a right on an individual member to participate in LegCo’s legislative processes, Mr Martin Lee, SC argued that a grant of law-making power to LegCo necessarily gives to its members an individual constitutional right to participate in its legislative processes “in accordance with the provisions” of the BL “and legal procedures”. This right, it was claimed, embraced the right to speak at LegCo meetings but it did not include the right to engage in a filibuster, as Mr Lee SC correctly conceded.

  21. The problem with this argument lies in the nature and language of art 73 taken as a whole. The purpose of the article, as is apparent from its language, is to confer certain powers and functions on LegCo as a law-making body, that is, as an institution. The article is not directed to the powers, let alone the rights, of individual members of LegCo. There is no reference in art 73, as there is in art 74[1], to members in their individual capacities.

  22. That the purpose of art 73 is not to confer rights on individual members of LegCo to participate in its processes is supported by art 75[2] which authorises LegCo to make its rules of procedure “on its own” and by the extensive powers conferred on the President by art 72. The two articles indicate that LegCo is to have exclusive authority in determining its procedure and that the President is to exercise his power to “preside over meetings” under art 72 so as to ensure the orderly, efficient and fair disposition of LegCo’s business.

  23. The consequences of the interpretation of art 73(1) advanced on behalf of the appellant are so daunting as to invite, if not demand, its rejection. The appellant’s interpretation would open the door to the courts so that any member of LegCo who was dissatisfied with the way in which the Rules were applied to him, or with rulings of the President, could seek relief from the courts by way of judicial review, not only post-enactment, but more importantly, pre-enactment. This prospect would be extremely damaging to the orderly, efficient and fair deliberations and working of LegCo. Its proceedings would be liable to disruption, delays and uncertainties occasioned by applications for judicial review, judgments and appeals.

  24. This point, which was well made by the Court of Appeal in this case, is supported by the judgment of Binnie J who delivered the judgment of the Supreme Court of Canada in Canada (House of Common) v Vaid[3] where a similar or related question arose. Binnie J had this to say:

    20.

    .... It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter. These are truly matters ‘internal to the House’ to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker's rulings were vindicated as entirely proper.

  25. Accordingly, we concluded that for the reasons already stated, art 73(1) does not confer on a member of LegCo a constitutional right to participate in its legislative processes by speaking. We agree with the conclusion reached by the Court of Appeal on this point and with Hartmann J in Leung Kwok Hung v President of the Legislative Council who said[4]:

    The powers and functions described in art 73 are not given to members of LegCo as individuals but to LegCo itself sitting as a legislative body.

    Article 73(1): Does it mandate the exercise of jurisdiction by the Hong Kong courts to ensure compliance with the Rules in the legislative processes of LegCo?

  26. Mr Martin Lee SC’s submission on this point was that the grant of law-making power is conditioned by the words “in accordance with” on compliance with the Rules and with rulings by the President pursuant to his powers. The answer to this submission is to be found in the provisions of the BL and in the principles of the common law governing the independence and autonomy of legislatures and the jurisdiction of the courts to intervene in matters concerning the internal processes of such law-making bodies.

  27. It is convenient to deal, first, with the relevant common law principles. Although these principles have their origin in the power, privileges and characteristics of the Parliament, in particular the House of Commons, in the United Kingdom and in the recognition by the courts of the exclusive authority of the Parliament to determine its own internal procedures, it is preferable now to regard the relationship between a legislature and the courts as an outcome of the application of the doctrine of the separation of powers. This doctrine is a common law doctrine which, in the case of Hong Kong, is reinforced by the constitutional separation of powers provided for by the BL. Sections 1 and 2 of Ch IV “The Political Structure” set out the powers and functions of the Executive and Executives Agencies while Sections 3 and 4 make similar provision for the Legislature and the Judiciary. Art 2 of the BL also recognises the separation of powers in providing:

    The National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.

  28. In construing and applying the provisions of the BL, it is necessary not only to apply common law principles of interpretation but also principles, doctrines, concepts and understandings which are embedded in the common law. They include the doctrine of the separation of powers and, within it, the established relationship between the legislature and the courts. This relationship includes the principle that the courts will recognise the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes. The corollary is the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind (“the non-intervention principle”)[5].

  29. The strength of this proposition rests not only on principle and authority but also on public policy. In Hong Kong, LegCo has as its primary responsibility its law-making function. It also has vested in it other important powers and functions under art 73, for example:

    (2)

    To examine and approve budgets introduced by the government;

    (3)

    To approve taxation and public expenditure;

    (4)

    To receive and debate the policy addresses of the Chief Executive;

    (5)

    To raise questions on the work of the government;

    (6)

    To debate any issue concerning public interests;

  30. The important responsibilities of LegCo, notably its law-making function, require, as with other legislatures, that it should be left to manage and resolve its own internal affairs, free from intervention by the courts and from the possible disruption, delays and uncertainties which could result from such intervention. Freedom from these problems is both desirable and necessary in the interests of the orderly, efficient and fair disposition of LegCo’s business.

  31. The adoption of the principle of non-intervention by the courts will reduce, if not eliminate, the prospect of pre-enactment challenge to proceedings in LegCo. It will also reduce, if not eliminate, post-enactment challenges to the validity of laws made by LegCo based on irregularity in its proceedings, unless such an irregularity amounts to non-compliance with a requirement on which the validity of a law depends.

  32. In this respect it is important to recognise that the principle of non-intervention is necessarily subject to constitutional requirements. The provisions of a written constitution may make the validity of a law depend upon any fact, event or circumstance they identify, and if one so identified is a proceeding in, or compliance with, a procedure in the legislature the courts must take it under its cognizance in order to determine whether the supposed law is a valid law[6]. In Australia, Cormack v Cope was such a case. There s 57 of the Australian Constitution provided a means of resolving a deadlock between the two Houses of Parliament culminating in a joint sitting of the two Houses to deliberate and vote upon a proposed law. But the section prescribed a procedure to be followed and compliance with that procedure was a condition of the validity of the proposed law when enacted.

  33. Although the principle of non-intervention is directed to pre-enactment judicial intervention in the legislative processes, the grounds on which the principle is based have generated a strong related principle of interpretation or presumption. That principle or presumption is that the courts will lean against an interpretation of a constitutional provision that makes compliance with procedural regularity in the law-making processes of a legislature a condition of the validity of an enacted law.

  34. It follows that art 73(1) is to be interpreted in the light of the foregoing background of common law principle and policy considerations. In this respect, we refer to the judgment of Lord Cooke of Thorndon P in Ah Chong v Legislative Assembly of Western Samoa[7] where he said with reference to the principle of non-intervention[8]:

    .... like all principles this one has its limits and they are not always easily discernible. One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own standing orders and to depart from them if the assembly sees fit, a Constitution may displace that presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly. But we agree with McLelland J in Namoi Shire Council v Attorney-General for New South Wales [1980] 2 NSWLR 639, 645, that the Court would lean against such an interpretation, an approach also to be seen as suggested by the Niue Court of Appeal in the judgment already cited. In the present case Sapolu CJ would have required ‘irresistible clarity’. Possibly, in our respectful opinion, that puts the test a little high, but certainly any real ambiguity would be resolved in favour of non-intervention.

  35. We refer also to the decision of the Privy Council in The Bahamas Methodist Church v Symonette because it illustrates the force of the interpretive principle favouring an interpretation of a Constitution which does not make compliance with procedural requirements in the legislative process a pre-condition of the validity of a law. There art 59(1) of the Constitution of the Bahamas enabled any member of the House, subject to the Constitution and the rules of procedure to introduce a Bill, or propose a motion for debate or present a petition. The article also provided that any proceeding initiated by a member should be debated and disposed of “according to the rules of procedure of the House”. The Privy Council held that the first provision did not make compliance with the rules a violation of the Constitution and that the second provision did not deprive either House of the power given by art 55(1) to regulate its own affairs. The Privy Council further held that clear language would be required to justify an interpretation of art 59(1) which opened to scrutiny the legislative processes of the House.

  36. The critical aspect of art 73(1) is that it makes no attempt to address the question whether non-compliance with “legal procedures” will result in invalidity of a law which is enacted after non-compliance with such procedures. Because non-compliance with provisions of the BL will result in invalidity, it could be suggested that a similar consequence follows from non-compliance with “legal procedures”. Such a consequence, however, could not have been intended because it would entail the invalidity of a law enacted after a trivial or relatively minor infringement of the relevant “legal procedures”.

  37. One possible answer to this problem would be to interpret the article so that invalidity results only when the infringement of the “legal procedures” is substantial, or to use the Israeli terminology, goes to “the heart” of the legislative processes. In our view, neither of these criteria is sufficiently precise to define the basis on which the courts should exercise a jurisdiction to intervene in the legislative process or to determine the validity of a law the enactment of which proceeds from non-compliance with the relevant procedure. In any event, it is a matter of conjecture to suggest that the intent of art 73(1) was to mandate the application of any such criterion.

  38. Accordingly, we concluded that the provisions of art 73(1) are ambiguous on the point under consideration and that they do not displace the principle of non-intervention. Indeed, art 75 by providing that Rules shall be made by LegCo “on its own” supports the application of that principle here. Our conclusion on art 73(1) is, however, subject to one important qualification.

  39. This qualification arises from the circumstance that, in the case of a written constitution, which confers law-making powers and functions on the legislature, the courts will determine whether the legislature has a particular power, privilege or immunity. In R v Richards; Ex parte Fitzpatrick v Browne[9], Dixon CJ, speaking for the High Court of Australia and with reference to the two Houses of the Australian Parliament, said[10]:

    it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise.

  40. Adopting a similar approach, in a case concerning the privileges of the Nova Scotia House of Assembly, McLachlin J said[11]:

    It is for the courts to determine whether necessity sufficient to support a privilege is made out.

    McLachlin J went on to say[12]:

    The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute ‘parliamentary’ or ‘legislative’ jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

    Thus the test of necessity for privilege is a jurisdictional test.

    The learned judge also observed that, if the courts went on to examine particular exercises of privilege,

    they would trump the exclusive jurisdiction of the legislative body.

    It followed that the area for court review is “only at the initial jurisdictional level”.[13]

  41. In referring to necessity, McLachlin J was addressing a situation in which it was essential to show that the existence of a particular privilege was necessary for a legislature to exercise its functions. The foundation for the approach taken by McLachlin J was the famous decision in Stockdale v Hansard[14].

  42. In Egan v Willis[15], Gaudron, Gummow and Hayne JJ referred to the two judgments referred to in paragraphs 39 and 40 with evident approval and went on to apply the principle enunciated in the two cases to the powers of a House of the New South Wales Parliament[16]. McHugh J likewise accepted the principle stated in the two judgments and applied it to the powers of the New South Wales House[17]. Kirby J was of a similar, albeit not precisely the same opinion[18], while Callinan J seems to have been of the same opinion[19]. In the result, the High Court of Australia held in Egan v Willis that a court may judge the existence of a power, privilege or immunity in a House of Parliament but may not examine the occasion and manner of its exercise and that a House of the New South Wales Parliament has power to suspend for a limited time a member of the House who refuses to produce a non-privileged document called for by the House.

  43. Accordingly, our conclusion on this point was that, although art 73(1) does not make compliance with the Rules essential to the validity of the enactment of a law by LegCo and that it is for LegCo itself to determine its own procedures and how they will be applied, the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of LegCo. We also arrived at the conclusion that the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of the President of LegCo. We arrived at this conclusion in the light, not only of art 73(1), but also of the provisions of art 72 of the BL and the important powers and functions which it confers on the President, particularly the power to “preside over meetings”. The courts, however, will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities either by LegCo or the President.

    The appellant’s argument that rule 92 did not authorise the President to put an end to the filibuster and close the debate

  44. The appellant’s case on this question was elusive, to say the least of it. The appellant’s principal argument was that rule 92 could not authorise the President’s action because other rules, had they been invoked or applied, would have justified the President’s decision to close the debate. Rule 92 provides:

    In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures.

    According to the President’s printed case, there is no rule which deals with a filibuster or authorises him to take any action with respect to a filibuster, so rule 92 applies.

  45. The appellant contended that the President could have achieved the outcome which he in fact achieved by recourse to rules 34, 38(1a), 41(1), 45(1) and (2) and 57(4)(a) and (b). The appellant’s contention on this point was remarkable because it suggested that the dispute in this case was academic in the sense that the only dispute was about the basis for the decision taken by the President, not about the making of the decision itself. 

  46. Be this as it may, it is clear that the President has power to set limits to and terminate a debate. The existence of the power is inherent in, or incidental to, the power granted by art 72(1) to the President to preside over meetings, quite apart from rule 92. The rules of procedure for which provision is made by art 75, as far as they relate to the President and his powers and functions, are necessarily subject to the provisions of art 72 setting out his powers and functions. It is not for this Court to consider whether or not the power was properly exercised. Nor is it for us to determine whether the President’s decision constituted an unauthorized making of a rule of procedure, although, in passing, we observe that the argument had nothing to commend it. As for the rules which the appellant suggested should have been applied, no doubt the President kept them in mind for possible application to the situations to which they are addressed.

    The Israeli jurisprudence

  47. Mr Lee SC sought to support his interpretation of art 73(1) by reference to the Israeli High Court of Justice decision in Israel Poultry Farmers Association v Government of Israel[20] where Beinisch J said[21]:

    22.

    The principle of participation, according to which each Knesset member has a right to participate in the legislative process, is also a basic principle in the legislative process of democracies. The principle of participation is merely a development of representative democracy and its application in parliamentary law .... the Knesset acts through the parties and through the Knesset members. Therefore, in order to enable the Knesset to carry out its functions by virtue of the principle of democratic representation, each Knesset member should be allowed to participate in the parliamentary proceedings that are required in order to carry out these functions.

  48. The recognition of the principle of participation, which seems to be well-entrenched in Israeli jurisprudence, is inextricably linked with the exercise by the Israeli High Court of Justice of a jurisdiction to intervene in the legislative process at the pre-enactment stage when there is a “defect that goes to the heart of the process”. According to Mr Martin Lee, SC, the recognition of exercise of this jurisdiction has evolved in a series of a cases, the principal decisions being MK Sarid v Chairman of the Knesset[22], Litzman v Knesset Speaker[23] and the Poultry Farmers Case[24] to which we have already referred in connection with the principle of participation. These decisions have rejected the English principle that parliamentary proceedings are excluded from the range of judicial review and, instead, have recognised that the Israeli High Court of Justice has jurisdiction to intervene in the legislative process at the pre-enactment stage when there is “a defect that goes to the heart of the process”.[25]

  49. In the Poultry Farmers Case, Beinisch J pointed out[26]

    What is a ‘defect that goes to the heart of the process’ is not decided in accordance with the classification of the defect as a defect of ultra vires or as a formal violation of a certain section in the Knesset Procedure Rules, but in accordance with the strength of the violation that this defect causes to ‘major values of our constitutional system’ or to basic values of our constitutional system that underlie the legislative process ....

    Such an approach, according to the learned judge, would restrict pre-enactment judicial intervention, to “serious and rare defects”[27].

  50. There are other aspects of the Israeli jurisprudence which differ from the traditional common law principles relating to judicial intervention in the legislative processes. Breaches of ordinary law, quite apart from breaches of the Israeli Basic Law, may prompt judicial intervention. Further, a defect which goes to the heart of the legislative process may not entail invalidity of the statute. It is said that one question which the Court should examine is whether the defects would have been passed but for the defect. It is also said that the Court should take into account the degree of reliance on the legislation, the extent of the reasonable expectations that it created and the consequences that will arise from declaring it void[28].

  51. In the light of this brief and no doubt less than adequate summary of the Israeli jurisprudence, based on the materials in the appellant’s printed case, we concluded that the case for adoption by this Court of the Israeli jurisprudence is less than compelling. In the first place, the Israeli approach to judicial intervention in the legislative processes is entirely at odds with the relevant and traditional principles of common law constitutionalism and the public policy on which they are based. Secondly, the principles governing such intervention by the Israeli High Court of Justice seemed to us, with great respect, to be insufficiently precise to offer firm guidance and to involve the making of judicial assessments of a kind which common law courts do not usually make. And we note that the appellant’s case contained no reference to a decided case in which the Israeli High Court of Justice has exercised its jurisdiction to intervene in the legislative processes.

  52. Accordingly, we declined to adopt the Israeli jurisprudence.

    Conclusion

  53. For the foregoing reasons we made the order dismissing the appeal.

5 DECEMBER 2014


The Court

  1. On 10 September 2014, we dismissed the appellant’s appeal against the Court of Appeal’s judgment[29] dismissing the Judge’s refusal to grant leave to apply for judicial review.[30] As directed by the Court in paragraph 1 of its Reasons for Judgment dated 29 September 2014 (the Reasons for Judgment), the parties have now filed written submissions on costs.

  2. This is the Court’s judgment on the issue of costs.

    Procedural history

  3. At first instance, having refused to grant leave to apply for judicial review, Lam J[31] ordered the appellant to pay the costs of the putative respondent but made no order as to costs between the appellant and the Secretary for Justice as the putative interested party.[32]

  4. In dismissing the appeal against the first instance judgment, the Court of Appeal affirmed Lam J’s order of costs. It also made, in respect of the costs of the appeal, a costs order nisi that the appellant pay to the putative respondent and to the Secretary for Justice respectively their costs of the appeal including the costs of the appellant’s application to vary the costs order nisi, to be taxed if not agreed, together with a certificate for two counsel.[33]

  5. The applicant applied to the Court of Appeal for leave to appeal to this Court against the Court of Appeal’s substantive judgment dismissing its appeal from Lam J’s judgment and also its judgment on costs. On 18 July 2013, the Court of Appeal dismissed the appellant’s application for leave to appeal to this Court against the substantive judgment, with costs to both the putative respondent and Secretary for Justice. On 16 December 2013, the Appeal Committee granted leave to appeal to this Court against the Court of Appeal’s judgment and certified two questions of great general or public importance, being the questions set out at paragraph 3 of the Reasons for Judgment.

  6. Subsequent to the leave application determined by the Appeal Committee, the appellant sought to withdraw his application for leave to appeal against the Court of Appeal’s Judgment (on Costs). Notwithstanding this, the Court of Appeal dismissed the appellant’s application for leave to appeal to this Court on the question of costs but reserved the costs of the application itself to this Court.[34]

  7. Despite the appellant’s assertion to the contrary, the Appeal Committee did not grant the appellant leave to appeal to this Court against the Court of Appeal’s Judgment (on Costs). However, the Court having dealt with the substantive appeal from the Court of Appeal’s judgment dismissing the appellant’s appeal against Lam J’s decision refusing leave to apply for judicial review, the appropriate costs orders that this Court should now make remains a live issue.

    The parties’ respective positions

  8. It is submitted on behalf of the appellant that there should be no order as to costs throughout the proceedings in HCAL 64/2012, CACV 123/2012, FAMV 37/2013 and FACV 1/2014. This submission is based on two short contentions, namely that (1) costs should not be awarded against an unsuccessful applicant in an ex parte leave application unless it is justified by exceptional circumstances, and (2) these proceedings are public interest litigation.

  9. The putative respondent’s stance is that the appellant should pay his costs of the appeal, with a certificate for two counsel, and also the appellant’s abandoned application to the Court of Appeal for leave to appeal to this Court on the issue of costs. It is also submitted that the costs orders made by Lam J at first instance and the Court of Appeal in respect of the substantive appeal to that court were plainly correct and ought not to be disturbed.

  10. The Secretary for Justice, as putative interested party, contends that

    1. there is no basis to interfere with the Court of Appeal’s judgment on costs under which the Secretary was awarded costs against the appellant, and

    2. the Secretary is entitled to the costs incurred in the appeal to this Court together with the reserved costs of the application to the Court of Appeal for leave to appeal against the Court of Appeal’s Judgment (on Costs).

    The Secretary asks for his costs to be taxed if not agreed and a certificate for two counsel.

    The relevant principles to be applied

  11. Applications for leave to apply for judicial review are made ex parte.[35] Ordinarily, such applications are dealt with on the papers and therefore do not lead to costs being incurred by any party other than the applicant.[36] Even if the applicant requests an oral hearing in case the judge dealing with the leave application is minded to refuse leave and the judge directs such a hearing, the hearing remains ex parte and no costs will be incurred by any party other than the applicant. Sometimes, the judge himself may direct an oral hearing on his own motion if he requires further information or submissions from the applicant. Again, if so, the hearing will normally remain ex parte.

  12. The position is less straight forward when a putative respondent or putative interested party appears at a contested leave application. Nothing in the rules prevents the court from hearing the putative respondent or putative interested party before deciding whether to grant leave. This may happen either on the application of the party seeking to be heard or at the court’s invitation. When another party other than the applicant appears and the application for leave is refused, the court may be faced (as the courts below were here) with an application for costs.

  13. There are clearly competing considerations and a balance to be struck. On the one hand, applicants seeking leave to apply for judicial review should “on the whole, [be] able to seek relief without fear, if permission was refused, of being saddled with the respondent’s costs at that stage.”[37] Equally, the imposition of a liability to bear a respondent’s costs should not become a deterrent to a litigant’s right to have access to the courts and care must be taken to ensure that costs “are not disproportionately inflated by the involvement of the other parties at the permission stage”.[38] This Court has also recognised that the character of judicial review proceedings to vindicate the public interest and the public importance of a case may be proper matters to take into account when exercising the discretion as to costs.[39]

  14. On the other hand, the principle that a successful party in litigation is entitled to an award of costs in his favour is one grounded in reasons of fairness and policy. When a party is put to the expense of responding to a claim in a court of law and prevails, it is only fair that he should be compensated for his expenditure. Equally, compensatory costs orders have long been part of our legal system and they serve to give claimants pause for thought before embarking on ill-conceived or unmeritorious litigation.

  15. The relative weight of these considerations will differ as between

    1. an application for leave to a first instance judge,

    2. an appeal to the Court of Appeal from the refusal of leave by the judge and

    3. on further, final appeal to this Court.

  16. It is apparent that courts in Hong Kong have, for some time, grappled with the competing interests referred to above in the context of the costs of putative respondents and interested parties in relation to unsuccessful applications for leave to apply for judicial review:[40] see, for example, at first instance, Shek Lai San v Securities and Futures Commission[41] and Re Ho Mei Ling (No.2);[42] and, in the Court of Appeal, Sky Wide Development Ltd v Building Authority.[43]

  17. The present case therefore provides a useful opportunity for the Court to state the principles to be applied in relation to the costs of opposing parties in unsuccessful applications for leave to apply for judicial review.

    The basic principle at first instance

    1. The basic principle remains that 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. Notwithstanding the guidance that follows, there may be exceptional cases in which the discretion, which is a broad one, may be properly exercised otherwise than it would in other cases.

    2. Since 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.[44] The discretion of making an award of such costs should be sparingly exercised.[45] Good reason will therefore be required in order for the court to make an order in relation to these costs against an applicant.

    3. There is no definitive list of reasons that may justify an award of costs against an applicant and in favour of a putative respondent. As already indicated, the discretion as to costs is broad. All facts and circumstances may be relevant and should be taken into account in the exercise of the discretion.

    4. Without limiting what the court will take into account, it will certainly be relevant to focus on the reason that has led the opposing party to attend at the hearing, whether that party’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application, always bearing in mind that the context is the end result that the court has refused to grant leave to apply for judicial review.

    5. By way of example of these particular considerations: if the putative respondent or putative interested party has attended at the invitation of the court, the reason why the court has considered that party’s presence necessary will be relevant; so too, if the opposing party’s presence at the hearing may have been necessary because of an application for interim relief; if an application was thoroughly ill-conceived or unmeritorious, this may be a weighty factor justifying an adverse costs order; similarly, if it was so frivolous or vexatious, or motivated for a tactical purpose indicating bad faith; where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge, this may be sufficient to persuade the court to make a costs order as if the matter had proceeded at a full inter partes hearing. These considerations may or may not justify a costs order in favour of a putative respondent and it is important to stress that the ultimate decision remains in the discretion of the judge. 

    6. If a putative interested party has appeared in addition to a putative respondent, the same principle will apply, namely that no adverse costs order should be made against the applicant in respect of those costs unless there are special or unusual circumstances which justify such an award. Where there is already one opposing party in the person of a putative respondent, whose costs the court is minded to order the applicant to bear, the court will need to be persuaded that some additional justification exists if it is additionally to order the applicant to bear a putative interested party’s costs. The interested party’s circumstances, including its claimed interest in the matter and its reasons for seeking to be heard on the leave application, will be material as will its conduct and any additional benefit its presence will have provided to the court. Such a party will not normally be entitled to an award of costs in his favour “unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the [putative respondent]; or unless he has an interest which requires separate representation”.[46]

      Reviewing the judge’s exercise of discretion

    7. The first instance judge’s decision being an exercise of discretion in relation to costs, it will only be subject to challenge on appeal on the normal limited grounds applicable to an appeal against such an exercise.[47]

      The position on intermediate appeal

    8. The position on appeal to the Court of Appeal is different. At this stage, although an appeal lies as of right,[48] the applicant will already have had the benefit of a hearing before the judge and the reasons for the judge’s refusal of leave. He will also have had the protection of the rule that he will only be at risk for an opposing party’s costs where special circumstances are shown. An appeal against a judge’s refusal of leave, which in practice proceeds on an inter partes basis, should therefore be subject to the usual rules as to costs, namely that the starting point in civil litigation, even that involving the public interest, is that costs should follow the event.[49] 

    9. The reversion to the normal costs rule as the starting point at this stage of the matter strikes a fair balance between the competing interests referred to above. The fact there is a right of appeal from a refusal of leave at first instance is not a good reason to depart from that normal rule and the application of the rule is particularly appropriate where the Court of Appeal’s reasons for dismissing the appeal are broadly the same as the first instance judge’s reasons for refusing leave.[50]

    10. Notwithstanding the applicability of the normal costs rule, the public interest litigation factor recognised in Chu Hoi Dick v Secretary for Home Affairs (No.2)[51] may apply so that the Court of Appeal should not order the applicant to pay an opposing party’s costs. For that factor to apply, it will be necessary for the applicant to show that he brought proceedings to seek guidance on a point of general public importance for the benefit of the community as a whole and that he stood to obtain no personal private gain from the outcome.[52] The applicant’s case must also have had a real prospect of success. [53] Even then, the ultimate order of costs remains in the discretion of the Court of Appeal, which will also need to take into account other relevant factors such as the conduct of the parties.[54]

    11. There is scope for argument as to whether the real prospect of success test is the same as or higher than the reasonable arguability test applicable for the grant of leave to apply for judicial review.[55] However, in Chan Noi Heung v Chief Executive in Council, the tests were treated as being the same[56] and that approach is appropriate. There is no good reason to extend the public interest litigation factor to an application for leave to apply for judicial review which does not even pass the reasonable arguability test. Although the appellant contends that this is an “absurd result”, to extend the factor to the leave stage would necessitate abandoning the threshold test at the substantive judicial review stage and there is no justification for doing so. It would mean that the grant of leave to apply for judicial review would itself be a reason for departing from the usual rule that costs follow the event after the substantive hearing, and this was an argument rightly rejected by the Court of Appeal in Chan Noi Heung v Chief Executive in Council.[57]

    12. So far as the costs of a putative interested party are concerned, although the starting point is that costs will follow the event, it will remain necessary for that party to show a separate issue on which he was entitled to be heard or an interest requiring separate representation.

      Reviewing the Court of Appeal’s exercise of discretion

    13. If it refuses leave to appeal to the Court of Final Appeal, the Appeal Committee will normally not review the exercise of discretion by the Court of Appeal on the question of costs unless there are exceptional circumstances.

    14. The position may be different if the Appeal Committee has granted leave to appeal to the Court of Final Appeal. In that event, even though dismissing the substantive appeal, the Court will have the benefit of hindsight in knowing that the case merited leave to appeal and this factor will justify a review of the Court of Appeal’s exercise of discretion on costs.

      Costs of the application for leave where the Appeal Committee refuses leave to appeal

    15. There being no right of appeal to this Court against the Court of Appeal’s dismissal of an appeal from a judge’s refusal of leave to apply for judicial review, an applicant must obtain leave from the Appeal Committee to appeal to this Court. Unless subject to the Rule 7 procedure, such an application for leave to appeal to this Court will proceed by way of inter partes hearing. Costs will be at the discretion of the Appeal Committee but it is to be expected that the usual order on the dismissal of an application for leave to appeal will be that costs follow the event.

      The position on final appeal

    16. On appeal to the Court of Final Appeal the position is again different to that at the intermediate appeal stage. While it is correct that, at the stage of an appeal to this Court, the unsuccessful applicant will have had both the benefit of the judge’s reasons for the refusal of leave and also the Court of Appeal’s reasons dismissing the appeal from that refusal, it is significant that an appeal to this Court, which will be inter partes, will only proceed because the Appeal Committee has exercised its discretion to grant leave to appeal.

    17. The grant of leave to appeal by the Appeal Committee will generally mean that a question of great general or public importance is involved in the appeal.[58] It will also mean that the Appeal Committee has determined that the appeal is reasonably arguable or otherwise worthy of being heard by the full Court. Although the appeal may ultimately fail, the grant of leave to appeal to the full Court is based on there being a sufficient public interest in the appeal being heard and the important point of law in question being resolved.

    18. This factor is significant and, for that reason, the grant of leave to appeal to the full Court should be treated as a sufficient threshold test on the merits to engage the discretion to apply the public interest litigation factor. Whether or not the Court will in fact exercise that discretion to make no order as to costs will depend on all the other factors relevant to be taken into account as described in sub-paragraph (10) above. The only difference in this context is that an applicant will not be required to show a case with a real prospect of success in the sense of passing the reasonable arguability test.

    19. As in the Court of Appeal, the position of a putative interested party will have to be looked at separately to that of a putative respondent and it will remain necessary to identify a separate issue on which he was entitled to be heard or an interest requiring separate representation.

    Applying the relevant principles to the present case

  18. With the above considerations in mind, the following issues remain to be determined:

    • First, the appropriate order as to the costs of the appeal in FACV 1/2014, including the costs of the application for leave to appeal in FAMV 37/2013;

    • Secondly, whether there is any proper basis to interfere with the Court of Appeal’s exercise of discretion as to the costs in CACV 123/2012 and, if so, what order to make as to those costs;

    • Thirdly, the appropriate order as to the costs of the withdrawn application for leave to appeal against the Court of Appeal’s Judgment (on Costs); and

    • Fourthly, whether there is any proper basis to interfere with Lam J’s exercise of discretion as to the costs in HCAL 64/2012 and, if so, what order to make as to those costs.

  19. As to the costs of the appeal to this Court, including the costs of the application for leave to appeal:

    1. It is submitted by the putative respondent and putative interested party that the appeal was so devoid of merit as to be properly described as “hopeless” so that, for that reason, the public interest litigation factor could not apply.

    2. It is true that three of the four contentions advanced in argument by the appellant were emphatically rejected by the Court: thus,

      • as to the argument that Article 73(1) of the Basic Law gave rise to a right to participate in the legislative process, the Court noted the consequences of the appellant’s interpretation in effect demanded its rejection (paragraph 23);

      • as to the argument that rule 92 of the Rules of Procedure did not confer power on the President to close the debate was described as “elusive, to say the least of it” (paragraph 44) and “remarkable” as tending to suggest the dispute was “academic” (paragraph 45) and was shortly rejected; and,

      • as to the attempt, as a new point in this Court, to pray in aid the Israeli jurisprudence, the Court was employing hyperbole in describing this as “less than compelling” and flatly declined to adopt that jurisprudence (paragraphs 51-52).

    3. However, in granting leave to appeal in the present case, the Appeal Committee was satisfied that the appeal raised questions of great general or public importance and that the appeal was reasonably arguable or otherwise worthy of being heard by the full Court. As we have concluded above, the grant of leave to appeal to the full Court should be treated as a sufficient threshold test on the merits to engage the discretion to apply the public interest litigation factor. It therefore falls to determine if that factor should be applied with the result that the appellant should not be made liable for the costs of the putative respondent or the putative interested party.

    4. The appeal raised two questions of constitutional law described in paragraph 2 of the Court’s Reasons for Judgment as being of “fundamental importance” relating to the doctrine of the separation of powers under the Basic Law. It follows that the appeal is properly to be characterised as having been brought with a view to obtaining guidance on a point of general public importance for the benefit of the community as a whole.

    5. In addressing the appellant’s argument that Article 73(1) made compliance with the Rules of Procedure essential to the validity of the enactment of a law by the Legislative Council, the Court acknowledged that the failure of Article 73(1) to address the question whether non-compliance with “legal procedures” would result in invalidity was a problem (paragraph 37) and that its terms were ultimately “ambiguous” (paragraph 38). Moreover, although holding that Article 73(1) did not displace the non-intervention principle, the Court went on to conclude that the approach of the High Court of Australia in Egan v Willis was to be adopted (paragraph 42) and held (paragraph 43):

      .... although art 73(1) does not make compliance with the Rules essential to the validity of the enactment of a law by LegCo and that it is for LegCo itself to determine its own procedures and how they will be applied, the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of LegCo. We also arrived at the conclusion that the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of the President of LegCo. We arrived at this conclusion in the light, not only of art 73(1), but also of the provisions of art 72 of the BL and the important powers and functions which it confers on the President, particularly the power to ‘preside over meetings’. The courts, however, will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities either by LegCo or the President.

      [emphasis added]

    6. The proposition stated in this paragraph is a critical part of the ratio of the Court’s judgment and provides clarification of the fundamental question of the amenability of the processes of the Legislative Council, in particular decisions made by its President in the course of the legislative process, to review by the courts of Hong Kong. The appeal has therefore resulted in guidance being given by this Court, as the final appellate court in this jurisdiction, on a point of general public importance.

    7. It is also clear that the appellant stood to obtain no personal private gain from the outcome. Furthermore, there is nothing in the conduct of the appellant in prosecuting the appeal to this Court to suggest a proper basis for disapplying the public interest litigation factor in the present case.

    8. Although in the event the Court did not feel it necessary to call on the putative respondent or putative interested party at the end of the appellant’s argument (paragraph 1), the Court had the benefit of evidence filed by the putative respondent and very full written submissions on behalf of both the putative respondent and putative interested party, which enabled the Court to reach its ultimate view on the outcome of the appeal without the necessity of further oral submissions on their part. The appeal to this Court proceeded, as it did in the Court of Appeal, as if it were a full inter partes hearing of the judicial review of the validity of the Ordinance. It was, for all intents and purposes, a full inter partes rolled-up hearing of

      1. the application for leave to apply for judicial review and

      2. the underlying judicial review itself as if leave to apply for judicial review had in fact been given.

    9. In the circumstances, we conclude that it is appropriate to make no order as to the costs of this appeal.

    10. As to the costs of the application for leave to appeal to this Court, such costs lie within the discretion of the Appeal Committee.[59] Where no order is made at the time of the grant of leave, the normal rule is that such costs will form part of the costs of the appeal and there is no reason to depart from that rule in the present case.

  20. As to the costs of the appeal to the Court of Appeal:

    1. In relation to the costs of the substantive appeal, the Court of Appeal applied the starting point that costs should follow the event and looked to see if there was any reason why that should not be the case.[60] Indeed, on the application to vary the costs order nisi, the appellant accepted this was the starting point.[61]

    2. The Court of Appeal went on to consider whether the public interest litigation factor should apply to justify no order as to costs of the appeal but decided that it did not.[62] As regards a second set of costs, the Court of Appeal also considered whether, and concluded that, the Secretary for Justice did have a separate interest with separate arguments that had to be promoted.[63]

    3. Had the matter stopped there in the Court of Appeal, or had the Appeal Committee refused leave to appeal to this Court, the Court of Appeal would have applied the correct principles in exercising its discretion as to costs and there would be no proper basis for interfering with that exercise of discretion.

    4. However, the Appeal Committee’s grant of leave to appeal to this Court significantly changed the landscape of the litigation. As observed above, it meant that a question of great general or public importance was involved in the appeal and that the appeal was reasonably arguable or otherwise worthy of being heard by the full Court. With this hindsight, it is apparent that there was a sufficient threshold for the application of the public interest litigation factor to apply in respect of the costs of the appeal to the Court of Appeal. Since the Court of Appeal understandably did not have the benefit of that hindsight and therefore declined to exercise its discretion to apply the public interest litigation factor on what turned out to be a faulty premise, it falls to this Court to exercise the discretion afresh.

    5. Exercising that discretion afresh, we consider that, for the same reasons it applies in this Court, the public interest litigation factor applies to the costs of the appeal and it is appropriate to make no order as to those costs.

  21. In light of the above conclusions, the costs of the withdrawn application for leave to appeal against the Court of Appeal’s Judgment (on Costs), which were reserved to this Court, should be treated as part and parcel of the costs of the appeal to this Court and so no order is made in respect of those costs.

  22. As to the costs at first instance:

    1. Lam J approached the matter on the basis that costs in an unsuccessful leave application for judicial review should only be awarded in favour of the putative respondent or putative interested party in exceptional cases, applying Sky Wide Development Ltd v Building Authority and Re Ho Mei Ling (No.2).[64]

    2. Lam J considered and rejected the appellant’s arguments based on his lack of resources, the lack of any private personal interest and the public interest litigation factor.[65] As to the latter consideration, he agreed with counsel for the putative respondent and putative interested party that “given the hopelessness of the application and the well-established principle on parliamentary privilege the Applicant cannot satisfy the test laid down in Chu Hoi Dick .... and Chan Noi Heung”.

    3. However, again with the hindsight provided by the subsequent procedural history, the Appeal Committee’s grant of leave to appeal to this Court demonstrates that there was a sufficient threshold for the application of the public interest litigation factor to apply in respect of the costs before Lam J. Since Lam J understandably did not have the benefit of that hindsight and therefore declined to exercise his discretion to apply the public interest litigation factor on what turned out to be a faulty premise, it falls to this Court to exercise the discretion afresh.

    4. Exercising that discretion afresh, we consider that, for the same reasons leading to the fresh exercise of discretion in respect of the costs in the Court of Appeal and in light of the fact the hearing before Lam J on 18 May 2012 was “in substance a rolled-up hearing”[66], it is appropriate to make no order as to the putative respondent’s costs before him.

    Conclusion

  23. In the circumstances, we make the following orders as to costs:

    1. There be no order as to the costs of the appeal in FACV 1/2014, including the costs of the application for leave to appeal in FAMV 37/2013;

    2. The order of the Court of Appeal dated 18 April 2013 as to the costs of the appeal in CACV 123/2012 is set aside and in its place there be no order as to those costs;

    3. There be no order as to the costs of the withdrawn application in CACV 123/2012 for leave to appeal against the Court of Appeal’s Judgment (on Costs); and

    4. The order of Lam J dated 18 July 2012 as to the costs of the application in HCAL 64/2012 is set aside and in its place there be no order as to those costs.


[1] Article 74 provides:

Members of the Legislative Council of the Hong Kong Special Administrative Region may introduce bills in accordance with the provisions of this Law and legal procedures. Bills which do not relate to public expenditure or political structure or the operation of the government may be introduced individually or jointly by members of the Council. The written consent of the Chief Executive shall be required before bills relating to government policies are introduced.

[2] Article 75 provides:

The quorum for the meeting of the Legislative Council of the Hong Kong Special Administrative Region shall be not less than one half of all its members.

The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law.

[3] [2005] 1 SCR 667

[4] [2007] 1 HKLRD 387 at §4

[5] See the Bahamas Methodist Church v Symonette [2000] 5 LRC 196 at 207h-211a; Prebble v Television New Zealand Ltd [1995] AC 321 at 332-333;Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong [1970] AC 1136 at 1157; Cormack v Cope (1974) 131 CLR 432 at 453-454

[6]Clayton v Heffron (1960) 105 CLR 214 at 235; Bribery Commissioner v Ranasinghe (1965) AC 172 at 197-198; Rediffusion (Hong Kong) Ltd v Attorney General Hong Kong [1970] AC 1136 at 1156-1157; Cormack v Cope (1974) 131 CLR 432 at 452, 473

[7] [2001] NZAR 418

[8] ibid at p 427

[9] (1955) 92 CLR 157

[10] ibid at 162

[11] New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 at 382

[12] ibid at 383

[13] ibid at 384

[14] (1839) 9 Ad & El, 112 ER 1112

[15] [1998] 195 CLR 424

[16] ibid at § 27

[17] ibid at §§ 65-67

[18] ibid at §§ 133-134

[19] At §179

[20] [2004] Isr LR 383

[21] ibid at p 413, §22

[22] HCJ 652/81

[23] [2004] Isr LR 363

[24] [2004] Isr LR 383

[25] ibid at §16 at pp 407-408

[26] ibid; see also Litzman v Knesset Speaker [2004] Isr LR 363 at §16

[27] [2004] Isr 383 at §16 at p 408

[28] Israel Poultry Farmers Association v Government of Israel [2004] Isr LR 383 at §17 

[29] CACV 123/2012, Judgment, 1 February 2013

[30] HCAL 64/2012, Judgment, 25 May 2012

[31] As Lam VP then was

[32] HCAL 64/2012, Judgment on Costs, 18 July 2012

[33] CACV 123/2012, Judgment (on Costs), 18 April 2013

[34] CACV 123/2012, Judgment (on Leave to Appeal on Costs), 30 January 2014

[35] RHC Order 53, rule 3(2)

[36] Practice Direction SL3, para.6

[37] R (on the application of Mount Cook Land Ltd) v Westminster CC [2004] 2 P.&C.R. 22 at §48

[38] R (Ewing) v Deputy Prime Minister [2006] 1 WLR 1260 at §§41-42

[39] See Town Planning Board v Society for Protection of the Harbour Ltd (No.2) (2004) 7 HKCFAR 114 at §19. To similar effect, in the Court of Appeal, upholding the judge’s exercise of discretion to make no order for costs in refusing a contested application for leave to apply for judicial review, see Lo Siu Lan v Housing Authority, unrep., CACV 378/2004, 1 March 2005, per Ma CJHC at §§3-4.

[40] The Court of Appeal has also considered the principles to be applied in relation to the costs of an unsuccessful application for judicial review where leave to apply for judicial review was granted to the ultimately unsuccessful applicant, see Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362 at §12.

[41] [2010] 4 HKC 168

[42] [2012] 1 HKC 400

[43] [2011] 5 HKLRD 202

[44] See R v Honourable Society of the Middle Temple, ex p Bullock [1996] ELR 349 per Brooke J at p.359C: “In the normal course of events it takes unusual circumstances for this court to award costs to a respondent successfully opposing a grant of leave.” It should be noted that this was a case decided under the RSC Order 53 procedure, equivalent to RHC Order 53.

[45] See R (on the application of Mount Cook Land Ltd) v Westminster CC [2004] 2 P.&C.R. 22 per Auld LJ at §48. This was a case decided under the new CPR Pt 54 procedure, which introduced a requirement of service of the initial claim and of a response by an acknowledgment of service and, more importantly, an entitlement (but not an obligation) of a responding defendant to attend and make representations at any oral renewal hearing for permission to apply for judicial review.

[46] Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176 per Lord Lloyd of Berwick at p.1178H – although a case where leave to apply for judicial review was granted, the statement of principle is equally applicable in the present context as a threshold test. It will remain for the putative interested party also to show special or unusual circumstances which justify an award of costs in its favour.

[47] See, Hong Kong Civil Procedure 2015, Vol.1, para.62/2/11 (p.1134); Lo Siu Lan v Housing Authority, unrep., CACV 378/2004, 1 March 2005, per Ma CJHC at §4; Sky Wide Development Ltd v Building Authority [2011] 5 HKLRD 202 at §32

[40] RHC Order 53, rule 3(4)

[49] Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362 at §12(1); see also, Re SOS (NI) Ltd’s application [2003] NICA 15 per Carswell LCJ (as Lord Carswell then was) at §11. Note that this was the question which Tang VP (as he then was) expressly did not decide in Sky Wide Development Ltd v Building Authority (supra) at §34.

[50] See Lister Assets Limited & Ors v The Chief Executive in Council, unrep., CACV 172/2012, 25 April 2013, at §48

[51] [2007] 4 HKC 428

[52] Chu Hoi Dick v Secretary for Home Affairs (No.2) at §29

[53] Ibid. at §§23-24, applying R (Corner House Research) v Secretary of State for Trade and Industry [2005] 4 All ER 1

[54] Ibid. at §30

[55] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §15

[56] [2009] 3 HKLRD 362 at §12(5)

[57] [2009] 3 HKLRD 362 at §12(4)

[58] Hong Kong Court of Final Appeal Ordinance (Cap.484) s.22(1)(b) – we leave aside “or otherwise” cases which would plainly be most rare and exceptional

[59] HKSAR v Koo Sze Yiu, unrep., FAMC 40/2014, 10 November 2014 at §16(3)

[60] Court of Appeal Judgment at §87

[61] Court of Appeal Judgment (on Costs) at §4

[62] Court of Appeal Judgment (on Costs) at §§8-10

[63] Court of Appeal Judgment (on Costs) at §§5, 12-14

[64] Judgment on Costs §2

[65] Judgment on Costs §§10-12

[66] Judgment on Costs §9. Indeed, there is a reasonable basis for thinking that, had the matter not be of such urgency at the time of the hearing on 18 May 2012 when it was then still a pre-enactment challenge, the Learned Judge might very well have granted leave to apply for judicial review so that the matter could be dealt with at a full inter partes hearing in due course.


Representations

Mr Martin Lee SC, Mr Hectar Pun and Mr Carter Chim, instructed by JCC Cheung & Co., for the Appellant.

Mr Benjamin Yu SC and Mr Anthony Chan, instructed by Lo & Lo, for the Putative Respondent.

Mr Stewart K.M. Wong SC and Mr Jin Pao, instructed by the Department of Justice, for the Putative Intervener.


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