HKSAR v. Bullen, Christian Anthony

HCMA 740/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 740 OF 2015

(ON APPEAL FROM ESS NO 8856 OF 2015)

_______________________

_______________________

_______________________

DECISION ON COSTS

_______________________

Introduction

1.This is an application for costs by the appellant following his successful appeal against conviction for an offence, contrary to section 38(1)(a) and (3) of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D (the Regulation). 

2.The appellant, who throughout these proceedings has appeared in person, seeks his costs both at trial and on appeal.

3.The offence for which the appellant has successfully had his conviction quashed is section 38(1)(a) and (3) of the Regulation which reads:

“(1) Each certificated local vessel and each of its ancillary vessels shall at all times have painted on it, or permanently affixed to or mounted on it, on each side of its deck housing where it can best be seen or on each side of the hull of the vessel where it can best be seen, the following marking-

(a) in the case of a certificated local vessel, the certificate of ownership number of the vessel; or

…

(3)   If, without reasonable excuse, subsection (1) or (2) is contravened, the owner of the vessel, his agent and the coxswain each commits an offence and is liable on conviction to a fine at level 2.”

4.A key element of this regulatory offence that was addressed at trial given the circumstances of the appellant’s case was whether he had a reasonable excuse for its contravention.  

5.It was not in dispute at trial that the appellant’s vessel did not display its ownership number as required by the Regulation and it was therefore incumbent on the appellant to show that he had a reasonable excuse.  I found that the Magistrate wrongly rejected the appellant’s excuse and that it justified the non-compliance of the legal obligation under this offence provision.

Appellant’s costs application

6.The respondent opposes the application by the appellant for costs at trial but agrees to his costs on appeal with the qualification that it should be limited to disbursements only.

7.It is well established that a court has no inherent jurisdiction to award costs in criminal proceedings other than when provided by legislation.  See Secretary for Justice v Tang Bun [1999] 3 HKC 647.

8.The power of the courts to award costs in criminal proceedings is mainly governed by the Costs in Criminal Cases Ordinance, Cap 492 (the Ordinance) and the Costs in Criminal Cases Rules (the Rules).  The Ordinance treats separately, the award of costs to the defendant under Part II and to the prosecution under Part III, but the principles and procedures are basically very similar. 

9.Under the Ordinance, section 15 sets out general principles which are stated as follows:

“In any criminal proceedings-

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;

(b) a court or a judge may have regard to any assessment laid before it or him for their assistance by any party to the proceedings of the amount of costs properly so incurred by any such party;

(c) an order as to costs shall be such as a court or a judge considers just and reasonable;

(d) the amount to be paid in pursuance of an order as to costs shall, unless an order for taxation is made under section 20, be specified in that order;

(e) the question of whether or not an order as to costs ought to be made in respect of any expenses properly incurred by any party to the proceedings in the course of the proceedings, including any proceedings preliminary or incidental thereto, may be adjourned until the end of those proceedings;

(f)   a court or a judge may take into account any other order as to costs which has been made in respect of those proceedings.”

10.It is also worth noting section 17 of the Ordinance which concerns costs unnecessarily or improperly incurred which reads:

“Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings.”

11.The fundamental principle is that an award of costs is not to be punitive but is to be reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred. 

Costs at trial

12.On the question of appellant’s costs at trial, the respondent argues that the appellant brought suspicion on himself and/or he had misled the prosecution into thinking the case against him was stronger than it really was.  The respondent points out that the appellant had not complied with the Regulation and it was for him to show that he had a reasonable excuse for not doing so which was only revealed at trial.  The respondent submits that he is therefore not entitled to his costs at trial.  The respondent relies on Cheng Kam Kuen v HKSAR, HCAL 92/2004, 17 May 2005, unreported, per A Cheung J (as he then was), at §§8 to 11, and the principles as stated in R v Kwok Moon-Yan [1989] 2 HKLR 396. 

13.I agree with the respondent’s submissions on the question of costs at trial.  The present offence is one of strict liability in which, while the prosecution bears the legal burden of proving the elements of the offence, the appellant bears the evidential burden of meeting the exception of a “reasonable excuse”.  It was not until the trial that the appellant put forward an explanation for the non-compliance of the Regulation.

14.I am therefore of the view that the appellant is not entitled to his costs at trial.

Costs on appeal

15.The respondent does not oppose the appellant’s costs of the appeal, except that it should be limited to disbursements only as he was not legally represented. 

16.A defendant’s entitlement to costs in relation to an appeal from a magistrate is provided under section 8 of the Ordinance which reads:

“Where a judge-

(a) allows an appeal to which section 105 or 113 of the Magistrates Ordinance (Cap 227) applies, in the exercise of his powers under section 120 of that Ordinance; or

(b) in any appeal against sentence imposed by a magistrate, quashes the sentence and in place of it imposes a less severe punishment than that so imposed,

the judge may order that costs be awarded to the defendant.”

17.As mentioned in section 8, costs may be awarded to a defendant where the judge allows an appeal to which section 105 (appeal by way of case stated) or section 113 (appeal from a magistrate on any matter) applies, in the exercise of his powers under section 120 of the Magistrates Ordinance, Cap 227.  This section reads:

“(1) On any appeal to which section 105 or 113 applies, the judge may make such orders as to costs, as he may think fit, and may-

(a) where he allows the appeal, direct that there shall be included in any costs to be paid by the respondent to the appellant the costs properly incurred by the appellant in the proceedings before the magistrate, or such fixed sum as the judge may consider reasonable in respect of the costs so incurred by him;

(b) in any case, in which the appeal is from an order or determination in respect of or in connection with an offence, in lieu of directing a taxation of costs, fix the sum to be paid by way of costs by either party to the appeal,

and in fixing, for the purposes of this subsection, the amount of any costs to be paid to a party to an appeal shall have regard to his means.”

18.Section 8 contemplates the judge exercising his powers under section 120 which provides under subparagraph (a), where he allows the appeal, to make an order as to the appellant’s costs before the magistrate, and under subparagraph (b), where in any case in which the appeal is from an order or determination of an offence, to fix the sum to be paid by way of costs by either party to the appeal. 

19.The appellant brought his appeal against conviction and sentence under section 113.

Respondent’s submission against costs

20.The respondent takes issue with the applicant’s claim for purported hours that he had spent on the case.  The respondent questions how “time spent on the case” can be justified as expenses incurred, let alone, properly incurred, as illustrated by the appellant’s claim for 5 hours spent attending court for the appeal hearing which lasted a little short of 2 hours.  The respondent also points out that the original hearing was adjourned due to the appellant’s late filing and service of his written submission contrary to the Court’s directions.  The respondent therefore submits that the appellant should only be awarded his disbursements for the purposes of this appeal only, if these can be shown to be properly incurred. 

21.The appellant argues that he has spent a certain number of hours on the appeal in relation to his written submission and oral argument at the hearing.  He refers to Order 62, rule 28A of the Hong Kong Civil Procedure, 2016, which concerns costs of a litigant in person.  This provides that on a taxation of costs of a litigant in person, such costs may be allowed as if the work and disbursements to which the costs relate had been done or made by a solicitor on a litigant’s behalf.  Where the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he should not be allowed in respect of the time reasonably spent by him on the work of a sum of not more than $200 an hour. 

22.Order 62 applies to all proceedings in the High Court with certain additions and exceptions specified under Rule 2.  In Hong Kong Civil Procedure, 2016, at §62/2/1, the effect of the Rule is briefly discussed, where it is stated that the Ordinance and the Rules have very limited application with the implication that the Order where appropriate would apply. See also §62/App/95 where the statutory scheme under the Ordinance is set out. Key to the question of costs are the applicable principles in the exercise of discretion as noted in Tong Cun-lin v HKSAR (1999) 2 HKCFAR 531 at 535 and Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308 at 314.

23.The term “costs” is not defined in the Ordinance but guidance is provided under the Rules where it states that such costs should be allowed in respect of such work as appears to be actually and reasonably done, and such disbursements as appear to have been actually and reasonably incurred, which are reasonably sufficient to compensate the claimant for any expenses properly incurred by him.  See Rules 6 and 7. 

24.The appellant has submitted an itemised bill of costs calculated on the basis of $200 an hour and disbursements but without distinguishing expenses incurred in relation to the trial and the appeal.  I have assessed the bill and on what I consider to be a sum reasonably sufficient to compensate the appellant for expenses properly incurred by him, I will fix the sum of costs on appeal at $5,000. 

Conclusion

25.Accordingly, I award to the appellant costs on appeal of $5,000.  As to the costs application, I make no order as to costs. 

Ms Audrey Parwani, PP of Department of Justice, for HKSAR

The appellant in person