Hong Kong Special Administrative Region v. Chow Chi Wai and Another

HCCC 458/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 458 OF 2013

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R U L I N G
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1.On 2 February 2016, I refused the application of the first defendant, Chow Chi Wai, under section 6 of the Costs in Criminal Cases Ordinance (Cap 492) for the recovery of part of the costs incurred in the prosecution of him, at the conclusion of which Mr Chow was acquitted of 39 counts of manslaughter and convicted on one of the two alternative counts of endangering the safety of others at sea. No appeal lies to the Court of Appeal from the refusal of the Court of First Instance to award an acquitted defendant his costs. That was common ground in HKSAR v Tong Cun Lin (1999) 2 HKCFAR 531. The Court of Final Appeal did not disagree with that. It follows that the only way in which Mr Chow can appeal from my ruling is by an appeal to the Court of Final Appeal: see section 31(b) of the Court of Final Appeal Ordinance (Cap 484). In the circumstances, Mr Chow now applies for a certificate that two points of law of great or general importance are involved in my ruling. The parties are content for me to determine that application without a hearing and without written submissions.

2.The first point which I am asked to certify is as follows:

“In a case of partial acquittal engaging s.6 Costs in Criminal Cases Ordinance, Cap. 497 [sic], if there was a substantial overlap in the evidence led in relation to the charge for which the defendant was convicted, and those charges for which the defendant was acquitted, does that preclude an award of costs to the defendant?”

This point does not arise for consideration as in my ruling I merely held that the fact that the evidence relevant to the charges on which Mr Chow was acquitted would have been led in respect of the charge on which he was convicted was a “highly material” factor.  I did not decide that it would “preclude an award of costs to the defendant”.

3.The second point which I am asked to certify is as follows:

“In a case of partial acquittal engaging s.6 Costs in Criminal Cases Ordinance, Cap. 497 [sic], is the relative disparity between the seriousness and number of the offences for which the defendant was acquitted, and between that of the offence for which the defendant was convicted, a material consideration in favour of the awarding of costs to the defendant?”

This point does not arise for consideration either as I took into account the difference between the gravity of the 39 counts of manslaughter on which Mr Chow was acquitted and the less serious single offence of endangering the safety of others at sea on which he was convicted. That is apparent from para 2 of my ruling.  A fair reading of the ruling is that despite that difference, greater weight was attached to the fact that the evidence relevant to the charges on which Mr Chow was acquitted would have had to be led in respect of the charge on which he was convicted than to the fact that Mr Chow was acquitted of the more serious charges and convicted only on one of the two alternative less serious charges.

4.In the circumstances, this application for a certificate that points of law of great or general public importance were involved in my ruling must be refused.