A A

B
CACV 97/2018 B
[2019] HKCA 563
C C
IN THE HIGH COURT OF THE

D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF APPEAL
E CIVIL APPEAL NO 97 OF 2018 E

F (ON APPEAL FROM HCAL 502/2017) F

G G
BETWEEN

H NG SHEK WAI Applicant H

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and
J INDEPENDENT COMMISSION Putative J

AGAINST CORRUPTION Respondent

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_______________________
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M Before: Hon Lam VP, Kwan VP and Au JA in Court M

Dates of Written Submissions: 9, 17 April 2019 and 2 May 2019

N N

Date of Decision on Costs: 27 May 2019

O __________________________ O

P DECISION ON COSTS P
__________________________
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Hon Lam VP (giving the Decision on Costs of the Court):
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1. This Court delivered a judgment on 26 March 2019 dismissing

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the appeal. We also directed parties to lodge submissions on costs.
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2. Counsel for the Putative Respondent lodged submission on B
9 April 2019 seeking an order that the costs of the Putative Respondent to be
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paid by the Applicant. A Statement of Costs asking for the total sum of

D $135,099 was attached to the submissions. D

E 3. The Applicant lodged submission on 17 April 2019 resisting the E

application for costs by the Putative Respondent. He submitted that he

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should have the protection against liability for costs on the same basis as an
G application for leave in the first instance as there was no initial response nor G

inter parte hearing at the court below. He also suggested that as the ICAC
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had already had the Withheld Document before the initial response, they
I should take the initiative in re-considering his case to obviate the need of an I

J
appeal. He said it was due to the inaction on the part of the ICAC that the J
costs of the appeal were incurred. He also commented on the quantum of
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costs and objected to certificate for two counsel.

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

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5. We have read and considered these written submissions. We

O do not find it necessary to hold an oral hearing to determine the question of O

costs. Our decision on costs is set out below.
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6. The approach of the courts to costs in an application for leave

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to bring a judicial review was discussed by the Court of Final Appeal in
R Leung Kwok Hung v President of the Legislative Council (2014) 17 R

HKCFAR 841. The position on intermediate appeal was stated at [17(8) to

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(12)] of that judgment. For present purposes, the relevant principles
T (derived from these parts of the judgment), are as follows: T

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

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(b) The rationale is that an applicant had already had the benefit of C
the reasons of the first instance judge in rejecting his application
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and the application of the usual rule at the appeal stage strikes

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a fair balance between competing interests; E

(c) The application of the usual rule is particularly appropriate

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where the Court of Appeal’s reasons for dismissing the appeal
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are broadly the same as the first instance judge’s reasons for G

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refusing leave; and H

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

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satisfied. K

L 7. We do not accept the submission of the Applicant that the L

absence of initial response or inter parte hearing at the court below

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constitutes valid ground for departing from the usual rule. Notwithstanding
N the non-involvement of the Putative Respondent at the Court of First N

Instance, the Applicant had the benefit of the detailed reasons of Zervos J in
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refusing leave. Input from a putative respondent by way of initial response
P or submission at an inter parte hearing only provides assistance to the first P

instance court in arriving at the reasons for refusing leave. The assessment
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if there are good grounds of appeal should focus on the reasons given by the
R judge. The availability of the judge’s reasons for refusing leave provides R

sufficient ground to revert back to the usual discipline for costs on appeal
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even if a putative respondent had no input at first instance.
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B
8. Further, as apparent from our judgment of 26 March 2019, our B
reasons for dismissing the appeal are broadly the same as those given by
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Zervos J notwithstanding that we sought inputs from the Putative

D Respondent before arriving at the same conclusions on the various grounds D

originally advanced by the Applicant. For reasons explained in our

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judgment, we refused to entertain new grounds put forward by the Applicant
F for the first time on appeal. F

G 9. In this respect, we do not accept the Applicant’s submission that G

the complexion of the case had changed by reason of matters raised in the
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initial response. This Court had emphasized that we are confined to the
I issues raised and considered by the judge in assessing the merit of the appeal. I

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10. We cannot see any good reason to depart from the usual rule of
K costs following event in the present appeal. The fact that the Putative K

Respondent participated in the appeal at the direction of the Court could not
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assist the Applicant in avoiding the usual costs consequence.
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11. The alleged inaction on the part of the ICAC after the Withheld
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Documents were supplied does not fall into the scope of the judicial review.

O There was no inquiry into whether the ICAC had taken further steps since O
the supply of such documents and if so whether the Applicant’s complaint
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had been adequately investigated. In light of that, we cannot accept the
Q Applicant’s bare assertion on his costs submission that the appeal was Q

occasioned by the alleged inaction.

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12. In our judgment, the Applicant should bear the costs of the
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Putative Respondent in this appeal.
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13. On the quantum of costs, we agree with the Applicant that the B
case does not merit the engagement of two counsel. At the same time, we
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accept that there had been division of works between the two counsel and if

D one counsel is engaged the time spent by such counsel would have been D

more. Counsel for the Putative Respondent assured this Court that the costs
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concerning redaction had not been included. We would also reduce the
F time engaged for preparation of the Initial Response and Skeleton Argument F

and List of Authorities. After making the necessary deductions, we shall

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make a gross sum assessment and fix the costs of the Putative Respondent at
H $82,166, such costs shall be paid by the Applicant to the Putative H

Respondent.
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J J

K K

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M M
(M H Lam) (Susan Kwan) (Thomas Au)
N
Vice President Vice President Justice of Appeal N

O O
The applicant acting in person

P Ms Audrey Parwani SPP, of the Department of Justice, for the putative P

respondent
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