YAN CHEN CHANG MEI AND OTHERS v. DIRECTOR OF IMMIGRATION

CACV000164A/1992

IN THE COURT OF APPEAL

1992, No. 163
(Civil)

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BETWEEN
LI JIN FEI

YU XING HUA

LI XI MING

LI BI YI

1st Appellant

2nd Appellant

3rd Appellant

4th Appellant

AND
DIRECTOR OF IMMIGRATION Respondent

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1992, No. 164
(Civil)

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BETWEEN
YAN CHEN CHANG MEI

YIN WEI HONG

YIN RUI ZHEN

1st Appellant

2nd Appellant

3rd Appellant

AND
DIRECTOR OF IMMIGRATION Respondent

________________

1992, No. 173
(Civil)

________________

BETWEEN
PAN ZE YAN ABLE

YIN CHANG WEI JOHNNY

1st Appellant

2nd Appellant

AND
DIRECTOR OF IMMIGRATION Respondent

________________

Coram: Hon. Litton, Bokhary, JJ.A. and Barnett, J.

Date of hearing: 11 June 1993

Date of decision: 11 June 1993

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D E C I S I O N

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Litton, J.A.:

1. This is an application by the successful respondent to this appeal for an order for costs in his favour. Because of the way the proceedingswere conducted in the court below the real issues were not in fact addressed until the arguments on behalf of the parties were developedin this court. These arguments were presented to some extent as a result of interventions by the court itself.

2. There is no legal right as to costs. The matter is very much in the discretion of the tribunal which hears the matter and is in thebest position to appreciate the full flavour of the proceedings. When the court is minded to award costs then O.62 r.3(3) requiresthe costs to follow the event except when it appears to the court that in the circumstances of the case some other order should bemade.

3. In the course of argument, Ms Hartstein in support of her application for costs referred us to the case of Ritter v. Godfrey (1920) 2 KB p.47 where the trial judge deprived the successful defendant of costs because the judge did not entirely approve of his conduct. Thiswas not a matter which was in issue in the litigation as the case was concerned purely with allegations of negligence; the judgeheld that no case of negligence was proved. I derive no assistance from Ritter v. Godfrey in relation to the proper order that we should make in this court.

4. Having regard to the way the proceedings were conducted as a whole in my judgment the proper order would be to leave each party topay his own costs and this application for cost of the appeal should therefore be dismissed.

5. Mr. McCoy on behalf of the respondent in Civil Appeal No. 173 of 1993 asks us to make an order that his client should be awardedthe costs against the Director of Immigration in the proceedings in the court below. This is a bold application. The fact is thathis client lost in the proceedings in the court below; the court exercised its discretion to award costs and following the provisionsof 0.63 r.3 gave the costs to the successful party. I can see no circumstance in the case which suggests that the court should havemade some other order and I can detect no error on the part of Mayo J in that regard. The application therefore on behalf of Mr.McCoy’s client should also be dismissed.

6. Mr. Tam associated himself in every respect with Mr. McCoy on behalf of his clients in CA No. 163 and No. 164. It must follow thatthe same orders should be made in relation to those two appeals.

Bokhary, J.A.:

7. I agree. The Director never ordered removal. Faced with the contention that he did so and did so wrongly, what did he do? He soughtto defend removal. In all the circumstances, I entirely agree with the orders proposed by my Lord.

Barnett, J.:

8. I too agree with what has been said by my Lord the President. There is nothing I can usefully add.

(Henry Litton) (K. Bokhary) (N.J. Barnett)
Justice of Appeal Justice of Appeal Judge of the High Court

Representation:

Mr. Philip T.S. Tam (M/S George Y.C. Mok & Co.) for Appellants in Civil Appeal No. 163 & 164 of 1992

Mr. G.J.X. McCoy (M/S Charles Yeung & Clement Lam & Co.) for Appellants in Civil Appeal No. 173 of 1992

Ms. V. Hartstein (Crown Solicitor) for Respondent