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Ho Chun Yan, Albert v Leung Chun Ying And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date10 January 2013
Year2013
Judgement NumberFAMV32/2012
Subject MatterMiscellaneous Proceedings (Civil)
CourtCourt of Final Appeal (Hong Kong)
FAMV21A/2012 RE HO CHUN YAN, ALBERT

FAMV Nos 21, 22, 24, 25, 26, 32, 33 and 34 of 2012

FAMV No 21 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 21 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 84 OF 2012)

_____________________

HO CHUN YAN, ALBERT Applicant
(Applicant)

_____________________

FAMV No 22 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 22 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 83 OF 2012)

_____________________

LEUNG KWOK HUNG Applicant
(Applicant)

_____________________

FAMV No 24 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 24 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

_____________________

Between:

SECRETARY FOR JUSTICE Intervener
(Applicant)
and
HO CHUN YAN, ALBERT Petitioner
LEUNG CHUN YING 1st Respondent
(1st Respondent)
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION) 2nd Respondent
(2nd Respondent)

_____________________

FAMV No 25 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 25 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

_____________________

Between:

HO CHUN YAN, ALBERT Petitioner
(Applicant)
and
LEUNG CHUN YING 1st Respondent
(1st Respondent)
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION)
 2nd Respondent
(2nd Respondent)
SECRETARY FOR JUSTICE Intervener

_____________________

FAMV No 26 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 26 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

_____________________

Between:

LEUNG CHUN YING 1st Respondent
(Applicant)
and
HO CHUN YAN, ALBERT Petitioner
(1st Respondent)
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION)
 2nd Respondent
(2nd Respondent)
and
SECRETARY FOR JUSTICE Intervener

_____________________

FAMV No 32 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 32 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

_____________________

Between:

HO CHUN YAN, ALBERT Petitioner
and
LEUNG CHUN YING 1st Respondent
(1st Respondent)
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION)
 2nd Respondent
(2nd Respondent)
and
SECRETARY FOR JUSTICE Intervener
(Applicant)

_____________________

FAMV No 33 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 33 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

_____________________

Between:

HO CHUN YAN, ALBERT Petitioner
(Applicant)
and
LEUNG CHUN YING 1st Respondent
(1st Respondent)
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION)
 2nd Respondent
(2nd Respondent)
and
SECRETARY FOR JUSTICE Intervener

_____________________

FAMV No 34 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 34 OF 2012 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 85 OF 2012)

_____________________

Between:

LEUNG CHUN YING 1st Respondent
(Applicant)
and
HO CHUN YAN, ALBERT Petitioner
(1st Respondent)
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION)
 2nd Respondent
(2nd Respondent)
and
SECRETARY FOR JUSTICE Intervener

_____________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Tang PJ

Date of Judgment on Costs: 10 January 2013

_____________________

JUDGMENT ON COSTS

_____________________

Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Tang PJ:

1. In our determination of 13 November 2012, we concluded that the challenges asserted by Mr Albert Ho[1] and Mr Leung Kwok Hung[2] against the election of Mr C Y Leung “are not reasonably arguable and that such challenges must therefore be brought to an end”. We also gave the parties liberty to apply for costs.

2. Mr C Y Leung now applies for costs against Mr Albert Ho and Mr Leung Kwok Hung. We are told that Mr C Y Leung is paying the legal fees incurred in the election petition and judicial review personally. It is submitted on behalf of Mr C Y Leung that these proceedings are in the nature of hostile, adversarial litigation and that costs should follow the event. It is also said that in the case of the petition election, Mr Ho, as the losing candidate, had a personal interest since he might be a candidate in a new election.

3. We see no reason why in election petitions, costs should not follow the event. In Mok Charles Peter v Tam Wai Ho, an election petition regarding an election to the legislative Council, costs were ordered to follow the event in all levels of the court.[3]

4. As for the applications for judicial review, prior to the intervention of the Secretary for Justice, the only real protagonists were Mr Albert Ho, Mr Leung Kwok Hung and Mr C Y Leung. This is not the usual type of case discussed in Chu Hoi Dick & Another v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 where the question is:

“…whether the applicant or the general public should bear the costs consequences for his action.”[4]

5. In these proceedings, Mr Albert Ho and Mr Leung Kwok Hung complained of two statements made by Mr C Y Leung as constituting materially false or misleading statements falling within the Elections (Corrupt and Illegal Conduct) Ordinance (“ECICO”) s 26(2) and thus supplying a basis for questioning Mr C Y Leung’s election. Lam JA struck out the first statement and held that the challenge based on the second statement had no real prospect of success. We have refused leave to appeal.

6. In Chan Noi Heung and others v the Chief Executive in Council [2009] 3 HKLRD...

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