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Shove Sherpa v The Director Of Immigration

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date07 August 2018
Neutral Citation[2018] HKCFI 1856
Year2018
Judgement NumberHCAL6/2014
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL6B/2014 SHOVE SHERPA v. THE DIRECTOR OF IMMIGRATION

HCAL 6/2014

[2018] HKCFI 1856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 6 OF 2014

___________________

BETWEEN
SHOVE SHERPA Applicant
and
THE DIRECTOR OF IMMIGRATION Respondent
and
THE SECRETARY FOR SECURITY 1st Interested Party
THE COMMISSIONER OF REGISTRATION 2nd Interested Party

___________________

Before: Hon Zervos JA in Chambers

Dates of Written Submissions: 18 and 25 July 2018

Date of Decision: 7 August 2018

________________

D E C I S I O N

________________

1. This decision addresses the question of costs arising from the judgment I handed down on 31 May 2018, dismissing the applicant’s application for judicial review.

2. The applicant mounted a legal challenge as to his residential status in the Hong Kong Special Administrative Region (HKSAR) by seeking to establish that he had right of abode and could not be the subject of deportation, having been issued with a deportation order after a string of criminal convictions.

3. The applicant has failed in his quest to establish a right of abode in the HKSAR on legal and constitutional arguments, and the opposing parties therefore request their costs in accordance with the general rule that costs follow the event. See Order 62 rule 3(2), 5 and 7 of the Rules of the High Court, Cap 4A. See also Wong Kam Tong v Tin Shing Court, Yuen Long (IO) (No 2) [2012] 2 HKLRD 1128, at paragraphs 10 to 13.

4. Mr Stephen Tang, for the applicant, requests that the Court make no order as to costs. He argues that the Court may depart from the general rule where the proceedings have been brought to advance a legitimate public interest.

5. A court may depart from the general rule in the exercise of its discretion, but only if there is a good reason for doing so. One such reason is the public interest exception. This will normally arise where it is desirable in the public interest to clarify an important issue in a case, so that on the question of costs the court may order that the parties bear their own costs. See Leung Kwok Hung v The President of the Legislative Council of the HKSAR (No.2) (2014) 17 HKCFAR 841, at paragraphs 14 and 17; Designing Hong Kong Limited v Town Planning Board [2018] HKCFA 16, at paragraph 13; and Chu Hoi Dick & Anor v Secretary for Home Affairs (No.2) [2007] 4 HKC 428, at paragraphs 28 to 30.

6. In Chu Hoi Dick, Lam J (as he then was) reviewed the costs jurisprudence of public interest judicial review and formulated three criteria that should be addressed regarding costs in public interest litigation. It will be necessary for the applicant to show that he brought proceedings to seek guidance from the court on a point of general public importance for the benefit of the community as a whole, that the judicial decision had contributed significantly to the proper understanding of the law in question, and that the applicant had no personal private gain in the outcome. Before coming to a final decision on costs based on these criteria, consideration should also be given to any other relevant factors, including those that may have a countervailing effect. See Leung Kwok Hung, at paragraph 17(10); and Chu Hoi Dick, at paragraph 30.

7. Critical to the question of costs are the merits of the case. This is a highly relevant factor, for however important the subject of the litigation or any particular legal point may be, if the issues raised have little merit, a court in such circumstances would normally not make any order other than costs following the event. See Designing Hong Kong Limited, at paragraphs 16 to 18.

8. Mr Tang argues that the Court...

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