The first man to challenge his detention on charges under Hong Kong’s new national security law will have to foot the government’s bill despite having raised important public issues because he adopted the wrong legal procedure.
But the High Court also refused the Department of Justice’s bid for Tong Ying-kit, 23, to pay more costs, on an indemnity basis, concluding in its Friday judgment that the arguments raised on his behalf were “not so devoid of merits that pursuing them should be regarded as unreasonable conduct in itself”.
The same court had earlier thrown out Tong’s application for a writ of habeas corpus – for the authorities to justify the legality of his detention – after finding “there can be no doubt that the magistrate had the lawful authority to remand him” and that he should have gone for a conventional bail review, as suggested by the department.
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The waiter has been held at Lai Chi Kok Reception Centre since July 6, when he became the first person brought to court to face charges of inciting secession and engaging in terrorism since the Beijing-imposed legislation came into effect on June 30.
He was accused of driving his motorcycle into a group of police officers at a July 1 protest, while carrying a flag bearing the protest slogan: “Liberate Hong Kong; revolution of our times”.
His application for habeas corpus hinges on the interpretation of Article 42 under the new law, which states under what conditions a court should deny bail. But his lawyers also raised important questions about the constitutionality of this and other provisions.
Counsel Linda Wong Shui-hung argued that her client should not have to pay for the department’s costs in resisting his application, because he was entitled to take proceedings for deprivation of his liberty, and because his case, being the first, was important to the general public.
She also said that the proceedings provided a much-needed opportunity for the controversial law to be clarified by the court, as well as a forum by which the validity of the law might be judicially recognised.
This helped command the respect and confidence of the public in Hong Kong’s legal system, she added.
Meanwhile, Jenkin Suen SC argued that the department was entitled to recovering more costs from Tong because his habeas corpus application was a collateral challenge of criminal proceedings and amounted to an abuse of process.
Suen also noted that the department had had a “resounding success” in the habeas corpus application, after warning Tong that he should have raised his challenge by way of a bail review.
But justices Anderson Chow Ka-ming and Alex Lee Wan-tang on Monday dismissed both the department’s application for Tong to pay more and the counter-bid to spare him.
In giving reasons on Friday, the judges concluded that the court had jurisdiction to award costs in the present case and explained that Tong should pay because he had adopted the wrong legal procedure to mount his challenge and failed the application.
The judges also observed that his case did not meet the criteria for it to be considered “a public interest litigation”, despite the important issues raised, because he had a private interest in the outcome of the application.
But those important issues were a significant factor against an order for indemnity costs, they ruled.
Such orders are usually made in cases where the application was an abuse of process, “scandalous or vexatious”, or had been initiated maliciously, or for an ulterior motive.
Tong has been on legal aid since August 19, a day before his application for habeas corpus was formally heard in the High Court, meaning the bulk of his potential costs liability would have been covered by the government department.
His criminal case will return to court on November 16.
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