IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 357 OF 1999
(ON APPEAL FROM HCMP 7315 OF 1999)
Coram: Hon Chan CJHC, Keith & Woo JJA
Date of Hearing: 10 March 2000
Date of Judgment: 10 March 2000
J U D G M E N T
Hon Chan CJHC:
1. This is an application by the applicant seeking an order that the order nisi for costs should be rescinded and that there be no orderas to costs in this appeal and in the court below.
2. Although there were admittedly some inaccuracies appearing in the warrants in question, the lower court had ruled that these inaccuracieswere not significant enough to vitiate the validity of the warrants. The applicant chose to challenge the validity of the warrantson the ground that these inaccuracies were material and fatal and that as a result, the warrants were not valid and the seizure andretention of the materials in question was unlawful. The applicant failed before the court below. Its appeal to this Court also failed.
3. I have considered the particular circumstances of this case as very helpfully elaborated by Mr Duncan in his submissions. In theexercise of the discretion of the court, I am not persuaded that these circumstances would call for a departure from the usual rulethat costs should follow the event. His application must be dismissed. The order nisi that the applicant should bear the costs ofthe appeal should be made absolute. I also propose that the costs of this application be to the respondent.
Hon Keith JA:
4. Mr Duncan contends that the particular circumstances of the case warrant a departure from the general rule that costs should followthe event. He points out that the challenge to the warrants could not have been mounted if they had followed the statutory language,and their failure to follow the statutory language was due, in part at any rate, to the drafts of the warrants which had been preparedon behalf of the Commissioner. I do not regard that as a sufficient reason to depart from the usual order. It may be that the Commissionershould be regarded as responsible in part for the language of the warrants, but it was because Apple Daily contended that the languageof the warrants rendered them invalid that the application to set the warrants aside was made. The fact that the problems with thewarrants could have been avoided if the statutory language had been followed is beside the point. The costs were incurred becauseApple Daily elected to argue, unsuccessfully both at first instance and on appeal, that the language of the warrants rendered theminvalid.
5. Mr Duncan also contends that the Commissioner failed to follow the provisions of Ords. 118 and 119. For example, an ex parte noticeof motion as required by Ord. 119 r. 4 was not issued. But any procedural failings which there may have been were not in my viewmatters on which either the application to Lugar-Mawson J or the appeal turned. And if there was a failure to comply with Ord. 119r. 5, that was a failure on the part of the court rather than the Commissioner.
6. Finally, I accept that both the application to set the warrants aside and the appeal from the refusal to set the warrants aside raisedquestions which merited mature consideration. But the fact that they did so did not mean that the costs should not follow the event.Otherwise, costs would only follow the event if an argument was rejected on the ground that it was completely unmeritorious. Forthese reasons, I agree with the Chief Judge that the application to vary the order nisi should be dismissed.
Hon Woo JA:
7. I agree with what has fallen from both of my Lords. The appellant has failed in its appeal against Lugar-Mawson J’s judgment. Ithas failed in all its major arguments. Despite Mr Duncan’s submissions, I do not see any good reason to deprive the successful respondentof the costs of the appeal, following the event of the dismissal of the appeal.
Mr Peter Duncan instructed by Messrs Deacons, Graham & James for the Applicant
Mr Kevin P Zervos, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent