Election — District Council election — Election petition — Withdrawal — Costs — Whether court has discretion to make costs order

Ms Linda Wong, instructed by Ho, Tse, Wai & Partners, for the petitioner

Mr Victor Dawes, instructed by Chung & Kwan, for the 1^st respondent

Mr Stewart Wong, instructed by the Department of Justice, for the 2^nd respondent

Andrew Cheung J


[1] These proceedings concern an election petition lodged by an unsuccessful candidate in the District Council Election held on 18 November 2007.

[2] On 16 October 2009, the Court gave leave to the petitioner to withdraw the election petition. The only outstanding question is costs.

[3] Section 56 of the deals specifically with the withdrawal of an election petition. Section 56(7) provides expressly that:

"The petitioner is liable to pay the costs of the respondent if-

(a) the election petition is withdrawn or abandoned; or

(b) the petition is taken to have been withdrawn under section 54(3); or

(c) the petitioner ceases to prosecute the petition."

[4] However, Ms Linda Wong, appearing for the petitioner, contends that section 56(7) only lays down a "prima facie rule". The court retains a discretion to make some other order as to costs. She relies on rule 21 of the , as providing for the general and unfettered discretion of the court in relation to costs. Rule 21 reads:

" (1) All costs of, or incidental to, the lodgement of an election petition and the proceedings consequent thereon, except such as are otherwise provided for under subrule (3), shall be defrayed by the parties to the election petition in such manner and in such proportions as the Court may determine.

(2) Any costs which in the opinion of the Court have been caused by vexatious conduct, unfounded allegations or unfounded objections on the part either of the petitioner or of the respondent, and any needless expenses incurred or caused on the part either of the petitioner or of the respondent, may be ordered to be defrayed by the parties by whom those costs or expenses have been incurred or caused whether or not those parties are on the whole successful.

……"

[5] Counsel also relies on the Court of Appeal’s decision in Wong Siu Yee v Chiang Sai Cheong CACV 91/1996 (15 November 1996), in support of her contention. The Court of Appeal has said that the court, under provisions contained in the now repealed (which were almost identical to rule 21(1) and (2)), had a broad discretion as to the "manner" and "proportion" in which costs should be defrayed.

[6] Counsel further argues that in view of the public interest element involved in the present election petition, and of the facts peculiar to the present case, the Court’s discretion should be exercised by ordering no order as to costs.

[7] I am not with Ms Wong. In my view, the interpretation of section 56(7)(a) is plain. When a petitioner obtains leave to withdraw his election petition and the petition is withdrawn accordingly, he is liable to pay the costs of the respondent. The subsection does not provide for any exceptional circumstances, or for the exercise of any discretion on the part of the court.

[8] Rule 21, like the rest of the rules in the District Councils (Election Petition) Rules, is made by the Chief Justice pursuant to section 52(3) of the principal Ordinance. Section 52(3) reads:

" The Chief Justice may make rules providing for giving effect to this Part and for regulating matters relating to the preparation, lodgement, service, trial and withdrawal of election petitions and costs in respect of those petitions (including the giving of security for costs), and the practice and procedure concerning the trial of those petitions."

[9] Whatever rule 21 provides must therefore be read subject to the provisions in the principal Ordinance, particularly sections 52(3) and 56(7).

[10] Section 56(7) is plain in its meaning. The purpose behind the section is equally plain. For obvious reasons, an election petition is not to be lightly lodged. Indeed the Ordinance and the Rules contain very stringent provisions governing the lodgement, prosecution and trial of election petitions. Specific provisions have been made to deal with withdrawal of election petitions. Section 56(1) specifically provides that a petitioner must not withdraw or abandon or cease to prosecute an election petition unless the petitioner has obtained the leave of the court. Section 56(2) provides that at the hearing of an application for leave, any person who could have lodged an election petition in respect of the election concerned, or the Secretary for Justice, may apply to the court to be substituted as petitioner.

[11] If there is substance in the election petition, or if there is any other good reason for prosecuting the election petition to its logical conclusion, the court may substitute another person or the Secretary for Justice as petitioner to carry on with the petition.

[12] In other words, not only is an election petition not to be lodged lightly, but once lodged, it is also not to be withdrawn or abandoned unless for good reasons. Cf Yuen To v Chan Shu Woon [1963] HKLR 422 (concerning an election petition arising from an Urban Council election).

[13] That being the case, it is not at all surprising to find, amongst the provisions dealing with withdrawal of an election petition, section 56(7), which specifically provides that the petitioner is liable to pay the costs of the respondent if the election petition is withdrawn or abandoned.

[14] Ms Wong has urged upon the Court the public interest element involved in an election petition to justify the interpretation that the court nonetheless retains a discretion on costs. I reject the argument. It is inconsistent with the obvious intent behind section 56(7) that a petitioner who has chosen to withdraw his petition is liable to pay the costs of the respondent. The legislature, in so enacting section 56(7), must be taken to have fully borne in mind the public interest element that is necessarily involved in an election petition. As I said, provisions have been made in the Ordinance to enable the court to substitute petitioners, in order for a meritorious election petition, or one that should be carried on, to be prosecuted to its logical conclusion.

[15] Reading the provisions in their proper context, it must also be remembered that unlike the position after trial, when a petitioner withdraws his petition midway through the proceedings, the court, almost by definition, would have very limited materials to work on if it were required to exercise any discretion on costs. Very often, all the court would have would be allegations and counter-allegations made on affidavit evidence. The advantage of leaving to the court a discretion on costs in such a situation is therefore more apparent than real. The downside of giving the court a discretion, such as uncertainty and further arguments over costs, is obvious. The Court of Appeal’s decision in Wong Siu Yee simply does not help because it was concerned with a costs order made after trial of an election petition. I have no difficulty with the proposition that after trial, the question of costs is in the broad discretion of the court. But that is a very different situation from the one that the Court is faced with here.

[16] Indeed one may ask rhetorically: if all section 56(7) accomplishes is to lay down a "prima facie rule", it may as well be omitted from the Ordinance altogether, because with or without such a "prima facie rule", the general rule on costs is that costs should follow the event.

[17] For all these reasons, Ms Wong’s interpretation of section 56(7) is rejected. The petitioner must bear the costs of the present proceedings.

[18] In case I am wrong with my primary conclusion, I would briefly set out my views on Ms Wong’s argument that on the facts of the present case, there should be no order as to cost. First, I do not accept Ms Wong’s argument based on public law interest. It is true that almost by definition, an election petition must involve an element of public interest. In my view, that is quite insufficient to display the prima facie rule that a petitioner who has chosen to withdraw his election petition should pay the costs of the respondent (assuming that this is only a prima facie rule). I note that in the context of judicial review proceedings, the courts have in recent years proceeded on the basis that if the proceedings have been brought by an applicant wholly or partly to obtain a personal gain, the normal rule that costs should follow the event would continue to apply, even though some public interest element is also present. See Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 ; Chan Noi Heung v The Chief Executive in Council CACV 197/2007 (16 March 2009).

[19] It is true that an election petition is not an application for judicial review, and, more often than not, election petitions are taken out by unsuccessful candidates in elections. Nonetheless, in my view, where (as here) an election petition is lodged for personal gain (whether wholly or partly), that fact must be seriously borne in mind, when the public interest argument is relied on.

[20] As regards the facts of the present case, the undeniable fact is that from day one, the petitioner was faced with the difficulty that he had lost the election in question by a wide margin. From first to last, he had insurmountable difficulties in proving that the alleged irregularities had had the effect of rendering the 1^st respondent not duly elected – which was eventually the reason he gave for withdrawing his election petition. Moreover, apart from the concession that the presiding polling officer had mistakenly distributed the wrong identification badges to the 1^st respondent and his election assistants, the further and much more serious allegations to the effect that the 1^st respondent and his assistants had made use of the wrong identification badges to engage in prohibited activities within the polling station – thereby materially affecting the outcome of the election, remained hotly contested issues.

[21] On those facts, there is simply insufficient justification for displacing the prima facie rule that when the petitioner chooses to withdraw his election petition at this stage (instead of proving his allegations at trial), he should pay for the costs of the proceedings.

[22] For those reasons, I order that the petitioner pay to the respondents their costs of these proceedings, to be taxed if not agreed. I reject the 2^nd respondent’s argument that costs should be taxed on an indemnity basis. Whilst I appreciate the arguments advanced on behalf of the 2^nd respondent by Mr Stewart Wong of counsel, I take the view that they are nonetheless insufficient to justify an award of indemnity costs against the petitioner.

[23] I thank counsel for their assistance.

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