MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

Because the first respondent chose to take an adversarial stance and actively argued the constitutional issue, he bore the risk of an adverse costs order; no procedural objection was taken to the manner in which the constitutional issue was raised, and the intervener had a consent order that no costs be made against it, accordingly costs should follow the event and the first respondent must pay the petitioner's costs.

Citation
MOK CHARLES PETER v. TAM WAI HO AND ANOTHER
Parties
Petitioner (appellant): MOK CHARLES PETER; 1st Respondent: TAM WAI HO; 2nd Respondent: VINCENT FUNG HAO-YIN; Intervener: SECRETARY FOR JUSTICE
Court
Court of Final Appeal
Jurisdiction
Hong Kong
Judgment Date
24 February 2011
Case Number
FACV8/2010
Procedural Posture
Final Appeal (civil) / Judgment on Costs
Outcome
Application to vary the costs order nisi dismissed with costs
Legal Topics
Validity of Legislation, Jurisdiction, Costs, Judicial Review, Legislative Council Ordinance S.67(3)
Source Language
EN
Constitutional Law Electoral Law Civil Procedure Public Law Validity of Legislation Jurisdiction Costs Judicial Review +1 more

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Parties

MOK CHARLES PETER

Petitioner (appellant)

TAM WAI HO

1st Respondent

VINCENT FUNG HAO-YIN

2nd Respondent

SECRETARY FOR JUSTICE

Intervener

Procedural Posture

Final Appeal (civil) / Judgment on Costs

Legal Issues

  1. 1 Whether s.67(3) of the Legislative Council Ordinance (Cap.542) is unconstitutional and deprives Court of Appeal of jurisdiction
  2. 2 Whether costs should follow the event where the respondent actively argued the constitutional issue
  3. 3 Whether the petitioner should have used judicial review procedure for the constitutional challenge

Ratio Decidendi

Because the first respondent chose to take an adversarial stance and actively argued the constitutional issue, he bore the risk of an adverse costs order; no procedural objection was taken to the manner in which the constitutional issue was raised, and the intervener had a consent order that no costs be made against it, accordingly costs should follow the event and the first respondent must pay the petitioner's costs.

Court Disposition

Application to vary the costs order nisi dismissed with costs

Orders

  • The costs of the petitioner before the Court and in the Court of Appeal shall be paid by the first respondent, such costs to be taxed if not agreed
  • No order as to costs in relation to the intervener (Secretary for Justice)