NG SHEK WAI v. INDEPENDENT COMMISSION AGAINST CORRUPTION

CACV 97/2018

[2019] HKCA 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 97 OF 2018

(ON APPEAL FROM HCAL 502/2017)

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DECISION ON COSTS

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Hon Lam VP (giving the Decision on Costs of the Court):

1.  This Court delivered a judgment on 26 March 2019 dismissing the appeal. We also directed parties to lodge submissions on costs.

2.  Counsel for the Putative Respondent lodged submission on 9 April 2019 seeking an order that the costs of the Putative Respondent to be paid by the Applicant.  A Statement of Costs asking for the total sum of $135,099 was attached to the submissions.

3.  The Applicant lodged submission on 17 April 2019 resisting the application for costs by the Putative Respondent.  He submitted that he should have the protection against liability for costs on the same basis as an application for leave in the first instance as there was no initial response nor inter parte hearing at the court below.  He also suggested that as the ICAC had already had the Withheld Document before the initial response, they should take the initiative in re-considering his case to obviate the need of an appeal.  He said it was due to the inaction on the part of the ICAC that the costs of the appeal were incurred.  He also commented on the quantum of costs and objected to certificate for two counsel.

4.  The Putative Respondent lodged submission in reply on 2 May 2019.

5.  We have read and considered these written submissions.  We do not find it necessary to hold an oral hearing to determine the question of costs.  Our decision on costs is set out below.

6.  The approach of the courts to costs in an application for leave to bring a judicial review was discussed by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (2014) 17 HKCFAR 841.  The position on intermediate appeal was stated at [17(8) to (12)] of that judgment.  For present purposes, the relevant principles (derived from these parts of the judgment), are as follows:

(a) The usual rule is costs should follow the event;

(b) The rationale is that an applicant had already had the benefit of the reasons of the first instance judge in rejecting his application and the application of the usual rule at the appeal stage strikes a fair balance between competing interests;

(c) The application of the usual 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; and

(d) There can be exception to the usual rule when the public interest litigation is applicable where the test in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 is satisfied.

7.  We do not accept the submission of the Applicant that the absence of initial response or inter parte hearing at the court below constitutes valid ground for departing from the usual rule. Notwithstanding the non-involvement of the Putative Respondent at the Court of First Instance, the Applicant had the benefit of the detailed reasons of Zervos J in refusing leave.  Input from a putative respondent by way of initial response or submission at an inter parte hearing only provides assistance to the first instance court in arriving at the reasons for refusing leave.  The assessment if there are good grounds of appeal should focus on the reasons given by the judge.  The availability of the judge’s reasons for refusing leave provides sufficient ground to revert back to the usual discipline for costs on appeal even if a putative respondent had no input at first instance. 

8.  Further, as apparent from our judgment of 26 March 2019, our reasons for dismissing the appeal are broadly the same as those given by Zervos J notwithstanding that we sought inputs from the Putative Respondent before arriving at the same conclusions on the various grounds originally advanced by the Applicant.  For reasons explained in our judgment, we refused to entertain new grounds put forward by the Applicant for the first time on appeal.    

9.  In this respect, we do not accept the Applicant’s submission that the complexion of the case had changed by reason of matters raised in the initial response.  This Court had emphasized that we are confined to the issues raised and considered by the judge in assessing the merit of the appeal.

10.  We cannot see any good reason to depart from the usual rule of costs following event in the present appeal.  The fact that the Putative Respondent participated in the appeal at the direction of the Court could not assist the Applicant in avoiding the usual costs consequence.

11.  The alleged inaction on the part of the ICAC after the Withheld Documents were supplied does not fall into the scope of the judicial review.  There was no inquiry into whether the ICAC had taken further steps since the supply of such documents and if so whether the Applicant’s complaint had been adequately investigated.  In light of that, we cannot accept the Applicant’s bare assertion on his costs submission that the appeal was occasioned by the alleged inaction.

12.  In our judgment, the Applicant should bear the costs of the Putative Respondent in this appeal.

13.  On the quantum of costs, we agree with the Applicant that the case does not merit the engagement of two counsel.  At the same time, we accept that there had been division of works between the two counsel and if one counsel is engaged the time spent by such counsel would have been more.  Counsel for the Putative Respondent assured this Court that the costs concerning redaction had not been included.  We would also reduce the time engaged for preparation of the Initial Response and Skeleton Argument and List of Authorities.  After making the necessary deductions, we shall make a gross sum assessment and fix the costs of the Putative Respondent at $82,166, such costs shall be paid by the Applicant to the Putative Respondent. 

CACV 97/2018

[2019] HKCA 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 97 OF 2018

(ON APPEAL FROM HCAL 502/2017)

_______________________

_______________________

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 9 August 2017, the applicant applied by Form 86 for leave to apply for judicial review in respect of two decisions of the putative respondent:

(a)  a decision of 10 May 2017 refusing to commence criminal investigation on the applicant’s complaint; and

(b)  a decision of 6 June 2017 refusing to explain the 10 May 2017 decision.

2.  The application was heard by Zervos J [“the Judge”] on 15 February 2018.  On 29 March 2018, the Judge refused to grant leave.  The Judge addressed the grounds advanced by the applicant and held that the putative respondent acted in accordance with established procedures in obtaining and following the advice of the Secretary for Justice in declining to investigate further in respect of the complaint of the applicant.  The Judge also held that the putative respondent did not refuse to explain the 10 May 2017 decision whilst it was the applicant who failed to take up the offer of the putative respondent to make further inquiry on the basis for that decision.  Since judicial review is a last resort, the Judge refused to entertain his application when he had not exhausted the other avenue open to him.

3.  By a notice of appeal, the applicant appealed against the decision of Zervos J.

4.  At the first hearing of this appeal on 13 September 2018, as there are aspects of the case which were not clear from the documents placed before us by the applicant, we followed the practice recommended in Wong Ho Tong v Director of Lands[2018] HKCA 330 inviting initial response from the putative respondent and adjourned the appeal.

5.  The putative respondent through the Department of Justice lodged initial response on 15 November 2018.  After reading the initial response, the Court directed the putative respondent to file evidence on the Established Procedure and the Standing Order alluded to in the initial response.

6.  Pursuant to that direction, a Senior Investigator of the putative respondent made an affirmation exhibiting the relevant documents on 28 December 2018.  Parts of the documents were redacted in the exhibits.

7.  The applicant wrote to the Court on 2 January 2019 objecting to the redactions.  The Court gave direction on 7 January 2019 that as no leave had been granted for redaction of any document, the putative respondent should seek leave by summons if redaction is sought to be made. 

8.  On 17 January 2019, counsel for the putative respondent sought leave to file a second affirmation of the officer to exhibit the documents without any redaction.  Leave was granted by the Court on 18 January 2019.

9.  The second affirmation was filed accordingly.

10.  In this connection, we accept the explanation of Ms Lai SC (appearing with Ms Parwani for the putative respondent) that the original redactions were made for operational reasons instead of any intention to conceal anything on the part of the putative respondent.  We also agree that all the relevant provisions had been shown in the redacted version.  There is no cogent basis to support the applicant’s allegation of concealment of evidence in this regard.

11.  On 31 January 2019, the applicant lodged his skeleton arguments. 

12.  On 12 February 2019, Ms Lai lodged written response to the putative respondent’s skeleton arguments. 

13.  At the hearing of the appeal on 14 February 2019 the applicant submitted to us his written response to the arguments of Ms Lai. We reserved our judgment after hearing the parties on 14 February 2019.

14.  We have read all the documents and the written submissions placed before us.

15.  The applicant applied by a summons of 20 August 2018 seeking leave to rely on some new evidence:

“ (i) The Second Affidavit which provides a corrected version of the official transcripts.

(ii) The official transcripts as exhibit SWNG-2 attached to the Second Affidavit.

(iii) The Third Affidavit which explains the communication between the Applicant and the Putative Respondent before and after the decision of the lower court.

(iv) Letters between the Applicant and the Putative Respondent before and after the decision of the lower court as exhibit SWNG-3 attached to the Third Affidavit.”

16.  There is no need to seek leave to refer to the official transcripts as it is not regarded as new evidence. 

17.  As regards the Second Affidavit of the applicant concerning the so-called corrections of the official transcript, we grant leave and we have considered the same.

18.  The Third Affidavit of the applicant is different.  In this affidavit, the applicant said he filed the same not to support his judicial review application but to defend his credibility against the “groundless speculations” of the Judge. 

19.  We cannot discern any part of the judgment ruling on the credibility of the applicant.   As far as we can see, the Judge did not refuse to grant leave on the basis of lack of credibility on the part of the applicant. 

20.  In his written submissions of 31 January 2019, the applicant changed his mind and said he would apply to use the Third Affidavit to support his appeal.  He said that there were factual inaccuracies in the initial response and he would refer to the evidence in the Third Affidavit to contradict the initial response.  However, he would not rely on anything starting from p.30 of his exhibit SWNG-3.

21.  It is necessary to reiterate firmly the role of this Court in hearing an appeal against the refusal of leave to apply for judicial review.  The following propositions made by the Court in Re Shrestha Santosh Kumar[2018] HKCA 583 at [17]in the context of an appeal against the refusal of leave to bring judicial review concerning a non-refoulement claim are equally apposite in the present context:

(a)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong, see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區[2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙[2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇[2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(b)  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time, see Daljit Singh[2018] HKCA 328; Re Qadir Sher[2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [40] and [41].

22.  In Wong Ho Tong v Director of Lands[2018] HKCA 330 at [33], [34] and [78], this Court also highlighted that an appeal against refusal of leave to apply for judicial review is not an occasion for an applicant to make a fresh attempt in seeking leave.  The Court will not permit grounds to be amended or new grounds to be advanced lightly.

23.  It is clear from the Form 86 and the affidavit of the applicant of 9 August 2017 placed before the Judge that his challenge to the decision of 10 May 2017 was based on section 12(b)(ii) of the Independent Commission Against Corruption Ordinance Cap 204 (Ground 1 in Form 86) and the established procedure for handling complaint (Ground 2 in Form 86).  He also relied on Wednesbury unreasonableness (Ground 3 in Form 86) without giving particulars.  The only discernible basis related to such ground in his affidavit was the investigation without the documents withheld (“the Withheld Documents”) by the applicant.  

24.  The Judge addressed his grounds accordingly in the written judgment of 29 March 2018 at [18] to [35]. 

25.  In light of the principles discussed at [21] and [22] above, we shall only consider the appeal by reference to these grounds. The additional materials (be they materials in the Third Affidavit or those filed by the putative respondent) are only admitted and considered in connection with these grounds and these grounds only.  New grounds raised by the applicant in these materials would not be entertained as we do not see any reason to justify the departure from the principles in the present case.

26.  With benefit of the additional materials before us (as alluded to above), we cannot see any errors in the analysis of the Judge on Grounds 1, 2 and 3.  We do not agree with the applicant that the Judge’s decision was tainted by consideration of irrelevant issues, misconception of facts or neglecting relevant evidence as alleged in the notice of appeal.  Nor did the Judge rule on the matter by speculation. 

27.  The Established Procedures are set out in the Commission Standing Order Chapter 24-02 [“CSO”].  The applicant tried to raise a new point concerning bias on the part of the officers of the putative respondent in his submissions in connection with the CSO.  Though he briefly alluded to chance of bias in his submission to the Judge, the Judge rightly pointed out that there was no allegation of bias in the documents filed by him in support of his application, see Transcript at p.10D to H.  As stated above, we would not entertain any new point in this appeal.

28.  It is clear to us that the putative respondent had acted in accordance with §1 and §11 of the CSO in following the view of the Secretary for Justice that no further action was warranted. 

29.  The applicant also raised a new point concerning the delegation of power by the Secretary for Justice to the senior directorate officer of the Department of Justice.  Again, we would not entertain such new point in this appeal.

30.  The same goes for the applicant’s arguments on the lack of evidence collection power by the Secretary for Justice, the L Group’s misunderstanding the CSO and neglecting their duty under it, the Secretary for Justice’s possible misunderstanding of her role because of the non-production of the report and the full content of the advice. 

31.  We reject the submission of the applicant that there was anything misleading in the initial response or that there was any breach of the duty of candour on the part of the putative respondent.  The disagreement between the applicant and the putative respondent on some factual details as set out in the applicant’s submissions does not affect the analysis on Grounds 1 and 2. 

32.  We also refuse to entertain the new allegation in the notice of appeal concerning speculation as to the correctness of the advice of the Secretary for Justice as this does not come within the scope of the challenge in the Form 86.  We agree with Ms Lai that there is no merit in the distinction the applicant seeks to draw between “legal advice” from the Secretary for Justice and a decision of the Secretary for Justice under §1 and §11 of the CSO in the present context. 

33.  As the Judge pointed out, it was the applicant who withheld the documents.  Thus, it lies ill in the mouth of the applicant to contend that the referral of the matter to the Secretary for Justice to make a decision under §1 of the CSO is Wednesbury unreasonable.  There is no merit in Ground 3.

34.  On Ground 4, the Judge decided against the applicant due to his failure to exhaust other available avenue instead of legal professional privilege.  We do not accept the submission of the applicant that the letter of 21 July 2017 did not offer a possible avenue to seek further explanation for the decision.  In this respect, the present case is similar to the case of 關媛薇[2018] HKCA 205. 

35.  Perhaps more fundamentally, we are further of the view that this application for judicial review is wholly unnecessary. After the decision of 10 May 2017, there was nothing to stop the applicant from furnishing the Withheld Documents to the putative respondent and requesting the latter to refer the matter to the Secretary for Justice again in light of the same, c.f. 黄得煒及警務處處長HCMP 2443/2016, 23 November 2016. Given the applicant’s concern over the lack of consideration of the Withheld Documents before the decision of 10 May 2017, the proper course is for him to take such a course instead of evoking the court’s supervisory power in judicial review to micro-manage the criminal investigation process, something which the court has repeatedly deprecated, see 黄容治及立法會秘書處 CACV 169/2015, 14 September 2016 in addition to 關媛薇[2018] HKCA 205. 

36.  We therefore dismiss the appeal. 

37.  The putative respondent indicated that they would seek costs if the appeal is dismissed.  We direct submissions and statement of costs be lodged and served by the putative respondent within 14 days from the date of handing down of this judgment.  The applicant shall lodge and serve his submissions within 14 days thereafter if he opposes the application.  After that, the putative respondent shall have 14 days to lodge and serve submissions in reply.  Unless otherwise directs, the Court shall determine costs on the papers.