FACV No.

3 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 3 OF 2014 (CIVIL)
(ON APPEAL FROM CACV NO. 244 OF 2012)
____________________
BETWEEN
T

Respondent

and
COMMISSIONER OF POLICE

Appellant

____________________

Before:

Chief Justice Ma, Mr Justice Ribeiro PJ,

Mr Justice Tang PJ, Mr Justice Fok PJ and
Lord Neuberger of Abbotsbury NPJ

Date of Judgment:

11 November 2014
________________________
JUDGMENT ON COSTS
________________________

The Court:
1.

By a majority, the Court dismissed this appeal. In paragraph 315 of

the Courts Judgment dated 10 September 2014, we gave leave to the parties to
file written submissions as to costs.
2.

The parties have now filed their written submissions on costs.

- 2 -

3.

The respondent, T, seeks his costs before us. He asks us not to

interfere with the costs order made by the Court of Appeal (as to which see
below).
4.

The appellant, the Commissioner of Police, invites us to reduce Ts

costs by 40% before this Court and in the courts below. The basis for such
reduction is said to be: the wasted time for written and oral submissions on the
constitutional issue, which the Commissioner contends was hopeless and should
not have been raised; the rejection even within the majority of the bulk of Ts
arguments on construction and the fact that Ts arguments shifted and his case
reformulated and reconstituted; the Commissioners maintenance of a
responsible and proper position throughout the litigation; and the exceptional
3:2 split amongst the Courts members on the construction issue such that an
order simply awarding all costs to T would fail to fairly and justly reflect this
strong division in views.
5.

We do not accept that the Commissioners arguments justify an

across the board 40% reduction of Ts costs at all levels of the proceedings.
6.

So far as the costs before this Court are concerned, we are satisfied

that these should follow the event and so we would award T all his costs of the
Commissioners appeal to this Court. The Commissioner chose to appeal the
Court of Appeals judgment to this Court and lost. The fact there was a 3:2 split
does not change that outcome and is not a sound basis for reducing Ts costs in
this Court.
7.

So far as the costs before the Court of Appeal are concerned, the

order made by that court was as follows:

57. As regards costs, there can be no denying that the applicant has won
substantially on the key dispute between the parties regarding the scope of
application of the relevant provisions in the Ordinance and whether the dance
performance was caught by the Ordinance, despite the way the relief sought in

- 3 the proceedings below and in this appeal has been framed. At the end of the
day, this court has been able to grant substantive relief in favour of the
applicant based on the merits of his case. I would therefore make a costs order
nisi that the applicant shall have 80% of the costs of the proceedings here and
below, together with a certificate for two counsel. I would also order legal aid
taxation of the applicants own costs. I would direct that any application to
vary the costs order nisi shall be dealt with by written submissions only.

8.

That order nisi was not subsequently varied.

None of the

Commissioners arguments at this stage justify any variation to that order as to

costs before the Court of Appeal and the Court of First Instance, which reduced
Ts recovery of costs in those courts by 20%.
9.

Therefore, the order we make as to costs is as follows:

The costs of and occasioned by the appeal to the Court of Final Appeal
(including the costs of preparing the written submissions on costs) be paid
by the Appellant to the Respondent, to be taxed if not agreed, with a
certificate for two counsel; and the Respondents own costs to be taxed in
accordance with the Legal Aid Regulations.

10.

We make no order varying the costs order of the Court of Appeal

dated 18 September 2013 as regards the costs before the Court of Appeal in
CACV 244/2012 and the Court of First Instance in HCAL 102/2011.

(Geoffrey Ma)
Chief Justice

(Joseph Fok)
Permanent Judge

(R.A.V Ribeiro)
Permanent Judge

(Robert Tang)
Permanent Judge

(Lord Neuberger of Abbotsbury)

Non-Permanent Judge

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Written submissions by Mr Johnny Mok SC and Mr Abraham Chan, instructed

by the Department of Justice, for the Appellant
Written submissions by Mr Hectar Pun and Mr Newman Lam, instructed by
Vidler & Co., assigned by the Director of Legal Aid, for the Respondent