Jiang Hai-pu v. The Department of Justice

[English Translation – 英譯本]

CACV 171/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Civil Appeal No. 171 of 2013

(On appeal from DCMP 1583/2010)

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BETWEEN

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JUDGMENT

Hon Kwan JA (giving the Judgment of the Court):

1.The Court of Appeal granted leave to the appellant, Jiang Hai-pu, to appeal against the decision of District Judge Chow dated 26 February 2013 only on the following issue:

“Whether a review of taxation of costs under section 21 of the Costs in Criminal Cases Ordinance, Cap 492 is a final and conclusive judgment?”

Background

2.The appellant was the defendant in a criminal case before the Kowloon City Magistracy. He ran a Chinese medicine clinic and was charged with six counts of offences, including that for possession of part I poison etc. After trial, three of the counts were dismissed and he was found not guilty on the remaining three counts. Having been acquitted, he applied for costs. The application was allowed on 10 March 2010 by Mr Peter Law who was then acting as Principal Magistrate. Mr Law also ordered that the amount of costs be assessed by the District Court.

3.On 4 January 2011, Mr Brian Mak, a Master of the District Court, taxed the costs of the appellant. According to the calculation made after the taxation, the appellant was entitled to costs in the total amount of $53,633. The appellant was dissatisfied with the taxation and applied for a review on 11 January. Master Mak spent six mornings and one afternoon between February and June 2011 to listen to the grounds of opposition and allegations the appellant made in respect of each of the small items. In his bill of costs, the appellant claimed an hourly rate of $600. He opposed the $200 per hour assessment the Master made pursuant to Order 62, rule 28A(3) of the Rules of the District Court (Cap 336A)[1]. He claimed that his clinic had to be closed during the time he was not in and patients who came for consultation had to come again. As he was engaged in work related to the lawsuit and suffered monetary loss, he insisted that he should be awarded $600 for each of the hours spent. He also opposed the assessments made regarding other items.

4.After hearing, Master Mak in the end decided on 30 June 2011 that all assessments on costs should remain unchanged. He ordered the appellant to pay the Department of Justice, the respondent in the case, the costs incurred in the review of the taxation. After considering the bill of costs submitted by the Department of Justice, Master Mak assessed the amount the appellant should pay at $63,312. In other words, he was not unable to obtain the award of costs made to him earlier, he also had to pay the Department of Justice the balance in costs of $9,679.

5.Dissatisfied with the decision of Master Mak, the appellant made an application by way of summons and submitted a notice of appeal on 11 July 2011. By means of the former, he applied for a review of the decision Master Mak made in the review by a District Judge; and by means of the latter, he appealed to a District Judge against the aforesaid decisions and the taxation of Master Mak. At that time, Master Mak had yet to give the reasons in writing for the decision he had made in the review of taxation of costs. The reasons in writing were only handed down on 22 August 2011.

6.Judge Chow dealt with the summons and the notice of appeal issued on 11 July 2011. He handed down his decision on 26 February 2013 in which he dismissed all the applications by the appellant. Judge Chow referred to the decision of Poon J, as he then was, in HKSAR v Wong Tsz Yuk (王子鈺) [2010] 1 HKC 464. In that case, Poon J held that the legislative intent of the Costs in Criminal Case Ordinance (Cap 492) (“the Ordinance”) and Costs in Criminal Cases Rules (Cap 492A) (“the Rules”) was clear. The Ordinance and the Rules did not allow anyone to apply to a Judge for a review of the taxation made by a master in a review. Judge Chow dismissed the appellant’s application for lack of legal basis and made a costs order nisi that there be no order as to costs.

7.The appellant applied for leave to appeal to the Court of Appeal against the decision of Judge Chow dated 26 February 2013. Judge Chow refused to grant him leave to appeal on 26 March 2013. He reiterated that Wong Tsz Yuk was binding on the District Court and that there was no mechanism in the Ordinance and the Rules to allow leave to appeal. Therefore, he considered that there was no legal basis for the appellant to make the application. He likewise made no order as to costs in respect of the application for leave to appeal.

Granting of leave to appeal

8.The appellant then applied to the Court of Appeal for leave to appeal against the decision of Judge Chow dated 26 February 2013. The Court of Appeal granted him leave on 5 August 2013 but confined the appeal to the issue that has been set out above. The appellant filed a notice of appeal on 16 August. In that notice, the order(s) he applied for and some of the grounds of appeal advanced did not observe the confines drawn by the Court of Appeal regarding the grounds of appeal and the issue. The oral submissions he made were also to a large extent outside the defined confines of the issue. We have to make it clear at the outset that this Court will not deal with any of the grounds of appeal that were advanced without leave.

9.The appellant also complained that the Registrar of Civil Appeals refused to give him leave to include in the appeal bundle documents he considered were necessary. He claimed that this was against procedural justice. The directions the Registrar gave regarding the content of the appeal bundle were made on the basis of the issue to be dealt with in the appeal as confined by the leave granted by the Court of Appeal. Yeung V-P also gave clear direction on 22 October 2014 that the appellant must comply with the directions given by the Registrar of Civil Appeals in respect of the compilation of appeal bundle. Therefore, during the appeal hearing, we refused to give him leave to make submission on his application to add documents to the bundle. His application to adjourn the appeal was also refused.

10.In view of the fact that the appellant was not legally represented and the appeal involved a question of law of general importance, the Court of Appeal appointed Ms Maggie PK Wong, barrister-at-law, as amicus curiae to make independent submission on the issue in question to assist the court to decide the matter after considering it from multiple perspectives.

The relevant provisions in law

11.First, we set out the relevant provisions in the Ordinance as follows:

“19. Appeals against award of costs

(1) Where a court or a judge has made an order that costs be awarded to any of the parties to the proceedings any of such parties may appeal against that order.

…

(3) Where the order for costs which is the subject of an appeal under this section was made-

(a) By a magistrate, the appeal shall lie to the Court of First Instance;

(b) By the District Court or the Court of First Instance, the appeal shall lie to the Court of Final Appeal.

…

20. Taxation of costs

(1) Where an order for costs is made by a court or a judge under this Ordinance the court or the judge may order that those costs be taxed.

(2) Where an order that costs be taxed is made under this section-

(a) by a magistrate or by the District Court, those costs shall be taxed by the Registrar of the District Court;

(b) by a judge or by the Court of Appeal, those costs shall be taxed by the Registrar of the High Court.

21. Review of taxation of costs

A party to the proceedings in respect of whom costs have been taxed who is aggrieved by that taxation may apply for the taxation to be reviewed-

(a) in the case of costs taxed under section 20(2)(a), to the Registrar of the District Court; and

(b) in the case of costs taxed under section 20(2)(b), to the Registrar of the High Court,

and on receipt of any such application, the Registrar of the District Court or the Registrar of the High Court, as the case may be, shall review the taxation accordingly.

22. Rules and orders

The Chief Justice may, with the approval of the Legislative Council, make rules and orders providing for-

(a) practices and procedures under this Ordinance; and

(b) matters relating to taxation of costs and reviews of such taxation.

12.As far as the present case is concerned, the applicable provisions are sections 20(2)(a) and 21(a).

13.The Rules were made pursuant to section 22 of the Ordinance. The provisions relevant to this appeal are set out as follows:

“5. Taxing authority

(1) For the purposes of section 20 of the Ordinance, where a court orders that costs are to be taxed, those costs must be taxed by the taxing authority in accordance with this rule and rules 6 and 7.

(2) Subject to subrule (3), the taxing authority is-

(a) the Registrar of the District Court in the case of proceedings in a magistrates' court or the District Court;

(b) the Registrar of the High Court in the case of proceedings in the Court of First Instance or the Court of Appeal.

…

7. Taxation of costs

(1) The taxing authority must consider the claim, any further particulars, information or documents supplied by the claimant under rule 6 and any representation by any interested party and must allow such costs in respect of-

(a) such work as appears to the taxing authority to have been actually and reasonably done; and

(b) such disbursements as appear to the taxing authority to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate the claimant for any expenses properly incurred by the claimant in the proceedings.

(2) In taxing costs under subrule (1) the taxing authority must take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.

(3) For the purposes of this rule, there must be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the taxing authority may have as to whether the costs were actually and reasonably incurred or were reasonably sufficient in amount must be resolved against the claimant.

...

8. Review of taxation of costs by the taxing authority

(1) A claimant or an interested party (the "applicant") who is aggrieved with a taxation of costs under rule 7 by a taxing authority may apply to the taxing authority for a review of that taxation.

…

(3) Subject to this rule, rules 33 and 34 of Order 62 of the Rules of the High Court (Cap 4 sub. leg. A) shall apply to a review under this rule with such modifications as may be necessary to make the same applicable to the circumstances of the review.

…

(7) The taxing authority must review the costs, whether by way of increase, decrease or at the level previously taxed, in the light of the objections made by the claimant or on behalf of the applicant and any representation by any interested party and must give notice to all parties of its decision.

(8) The applicant or any interested party can request the taxing authority to give reasons in writing for its decision and, if so requested, the taxing authority must comply with the request.

…”

14.Master Mak proceeded on the basis of rule 7 of the Rules when he taxed the costs on 4 January 2011. The application for review of the taxation of costs the appellant made on 11 January was pursuant to rule 8(1) of the Rules. The Master dealt with the review application pursuant to rule 8(3) and made the decision pursuant to rule 8(7) and gave notice to all parties of his decision.  He also gave reasons in writing for his decision pursuant to rule 8(7) (sic).

Appellant’s submissions

15.Aggrieved by Master Mak’s decision in the review of the taxation of costs, the appellant asked a District Judge to review that decision and appealed against that decision to a District Judge.

16.As regards the absence of provisions in the Ordinance and the Rules that allow a claimant to apply to the court concerned for review or appeal against the decision of a taxing authority  after it had reviewed the taxation made, the gist of the appellant’s submissions are as follows.

17.He argued that if he was not allowed to apply to a District Judge for review or appeal, then Master Mak’s decision in the taxation of costs was conclusive, and hence would be tantamount to a final decision. This is “unlawful”. In respect of taxation of costs, the Ordinance and the Rules only allow a claimant to apply for review once, but Order 62 of the Rules of the High Court allows a claimant three chances to review or appeal. He argued that if the Master Mak’s decision in the review was not consistent with the law and involved a serious mistake, the higher courts should have the power to intervene and correct it. Therefore, we should allow him to address the Court on how the decision Master Mak made in the review was inconsistent with the law and to produce documents that he considered could support this argument. He submitted that Wong Tsz Yuk was not applicable to the present case.

18.He further argued that on 30 June 2011, Master Mak ordered him to pay the costs of the Department of Justice in the review of the taxation of costs hearing and assessed it to be in the amount of $63,312. As this was the first time an order and taxation of costs was made, sections 20 and 21 of the Ordinance were not applicable. He should be allowed to appeal against this.

Submissions of the Department of Justice

19.The position of the Department of Justice is, the Ordinance and the Rules are the legislation that provides for a uniform code on costs in criminal cases[2]. Neither the Ordinance nor the Rules have any provision allowing a judge to review a decision made by a master in the review of taxation of costs. The courts do not have any inherent jurisdiction to deal with costs in criminal cases. Therefore, a decision a master made in a review of the taxation of costs pursuant to section 21 of the Ordinance and rule 8 of the Rules is final and conclusive.

20.Mr David Leung, SC, acting for the Department of Justice[3], cited Wong Tsz Yuk. He pointed out that the Ordinance and the Rules were a complete and self-contained code, the legislative intent of which was clearly not to give claimants the right to ask a judge to review the decision a master made in a review of the taxation of costs. It was neither unfair nor against procedural justice to provide that a master shall be the final arbiter in taxation of costs with the decision he or she makes in a review.

Submissions of the amicus curiae

21.The position of Ms Wong is that although the Ordinance and the Rules only provide the mechanism to review taxation of costs once and such reviews are to be dealt with by masters only, both the District Court and the High Court have inherent jurisdiction to correct any mistakes that the masters might have made during reviews of taxation of costs. She said the court may exercise its inherent jurisdiction to make good any deficiency in the statute. It must, however, proceed with caution in the exercise of this power and do so only when there is an obvious error to ensure that there is no real injustice.

Background and history leading to the enactment of the statute

22.The Ordinance’s legislative background, purpose and the mischiefs it sought to address were discussed in detail in Wong Tsz Yuk: see paragraphs 16 to 37.

23.In criminal cases, the courts in Hong Kong do not have inherent jurisdiction to award costs to the prosecution or the defence. Such power is conferred by statute which also empowers the courts to tax the costs to be awarded and review the taxation of such costs. Before the enactment of the Ordinance, the provisions and rules regarding costs in criminal cases were scattered in various ordinances and subsidiary legislations. As a result, there were imperfections and considerable disparities at different levels of court in the exercise of the power and in the procedure for taxation of costs.

24.The Attorney General therefore set up a Working Party on Criminal Proceedings (sic) in 1991. The recommendations of the Working Party were generally modelled on English laws (Part II of the Prosecution of Offences Act 1985 [Eng] and the Costs in Criminal Cases (General) Regulations 1986 [Eng]). The Working Party recommended that all provisions on the matter of costs be consolidated in one ordinance. All courts should adopt the same guiding principle for awarding costs when dealing with costs in criminal proceedings. The Working Party stated in paragraph 11(9) of its Report that: “There should be provision for appeal against a taxing master’s decision on quantum (See Regulation 11 of the Costs in Criminal Cases (General) Regulations, 1986).”  Therefore, the Working Party had indeed referred to English Rules to recommend the creation of an appeal mechanism against a taxing master’s decision on taxation.

25.The arrangement under 1986 English Regulations regarding the taxation, review and appeal of costs is as follows: Costs are first to be taxed by an appropriate authority. It must be noted that the appropriate authority does not necessarily have to be a judicial officer. It may be an officer appointed by the Lord Chancellor or a justices’ clerk in a magistrates’ court (Regulations 5(2)(c) and (d)).  Where a claimant is not satisfied with the amounts of costs taxed by the appropriate authority, he may apply to the appropriate authority for review (Regulation 9). If he is dissatisfied with the decision on review, he may appeal to a taxing master (Regulation 10). The Regulation 11 that the Working Party mentioned states that a claimant who is dissatisfied with the decision of a taxing master on appeal may apply to the taxing master to certify that the taxation of costs decision involves a point of principle of general importance. Only claimants who have obtained such a certificate may appeal to the High Court (Regulation 11(1) and (3)). The appeal shall be heard and determined by a single judge whose decision shall be final. (Regulation 11(7)).

26.However, the bill introduced by the Attorney General did not adopt the recommendation of the Working Party for an appeal against the decision of the master in taxation. Under the English Rules, a claimant may have three chances to review and appeal the taxation of costs. The Hong Kong Bill, however, did not provide for similar provisions. It would only allow a claimant one chance to review, and the review is to be dealt with by the taxing authority. Nevertheless, it should be noted that the Bill stipulated that the taxing authority in taxations of costs must be a judicial officer. When the Legislative Council was scrutinizing the Bill, there was no discussion on the review and appeal of taxation and no amendment was made to clauses 20 and 21 of the Bill before they were passed. The Ordinance and the Rules took effect from 17 January 1997.

27.Ms Wong pointed out that clause 22 of the Bill, which later became section 22 of the Ordinance, provides that the Chief Justice may make rules and orders to provide for the practice and procedure and other matters relating to the taxation of costs. Such rules and orders will take the form of subsidiary legislation. She submitted that although the legislature provided the Ordinance with a set of fair and meticulous principles, there was no detailed discussion on the question of appeals from a review, “but left these powers to the Chief Justice to make rules and orders”. If the submission of Ms Wong is that the Chief Justice may make provisions in the form of subsidiary legislation pursuant to section 22 of the Ordinance for a further review of the decision of the taxing authority and for an appeal from the decision of the taxing authority on a review, we do not accept this argument. The crux of the question lies with the interpretation of the Ordinance and the Rules, whether or not they provide expressly that a decision made on a review by the taxing authority is final and conclusive. If this is the correct interpretation, then no subsidiary legislation inconsistent with the main ordinance may be made.

The interpretation of the Ordinance and the Rules

28.We accept the submission of the Department of Justice regarding interpretation.  The decision of Poon J in Wong Tsz Yuk is correct and applicable to the present case. Ms Wong did not put forward different arguments regarding the interpretation of the Ordinance and the Rules either.

29.As Poon J pointed out in paragraph 38 of Wong Tsz Yuk, the Ordinance and the Rules are a complete and self-contained code regulating the law and practice of costs in criminal cases, with the aim of removing all the anomalies and inconsistencies that existed in the laws on costs in criminal cases before the enactment of the legislation. We agree with what was said in paragraph 47 of Wong Tsz Yuk: the decision to limit the right to review taxation of costs to the taxing authority in section 21 of the Ordinance was plainly made deliberately by the legislature. The legislative intention is crystal clear: before the enactment of the legislation, applications could be made pursuant to Order 62 Rule 35 of the Rules of the High Court to a judge to further review the decision a master made in a review. This is not permissible after the enactment of the legislation as the Ordinance and the Rules provide a complete mechanism to standardize the applicable law and practice for costs in criminal cases, including the right to review taxations, at all levels of court, with the exception of the Court of Final Appeal.

30.Mr Leung also found corroboration from the interpretation of other Ordinances, such as the Hong Kong Court of Final Appeal Rules. This point has also been discussed in paragraphs 50 and 51 of Wong Tsz Yuk. Rule 57 of the Hong Kong Court of Final Appeal Rules provides that all costs of the Court of Final Appeal shall be taxed by the Registrar of the Court of Final Appeal in accordance with Order 62 of the Rules of the High Court. Rule 59 provides that where the Court of Final Appeal directs a party to bear the costs incurred in the courts below, such costs shall be taxed in accordance with the rules for the time being regulating taxation in the courts below. The applicable rules where criminal cases are concerned are the Rules. Section 45 of the Court of Final Appeal Ordinance and Rule 60 of Hong Kong Court of Final Appeal Rules provide that any party aggrieved by a decision of the Registrar on taxation may appeal to the Court of Final Appeal. Such an appeal shall be heard by a single permanent judge. As Poon J had pointed out, since the power to deal with costs must be created by statute, section 45 and Rule 60 exactly show that there must be express provisions for a superior court to have jurisdiction to review decisions the Registrar made in taxations. For exactly the reason that there is no such express provision in the Ordinance and the Rules, a claimant cannot apply to a judge for a review of the decision a taxation authority has made or to appeal against the said decision.

31.Mr Leung further pointed out that section 19(1) of the Ordinance provides that where a court or a judge has made an order that costs be awarded to any of the parties to the proceedings any such parties may appeal against that order. Section 19(3) provides that where the order for costs was made by a magistrate, the appeal shall lie to the Court of first Instance; where it was made by the District Court or the Court of First Instance, the appeal shall lie to the Court of Appeal. But where a court or a judge has refused to award costs to any of the parties to the proceedings, section 19 does not provide the right to appeal. It can be seen from this that the Ordinance deliberately regulates the right to appeal against costs orders in criminal cases. A claimant may not appeal against each and every order or decision.

Inherent jurisdiction

32.Ms Wong’s submission on inherent jurisdiction was made on the basis of some English cases.

33.In R v Supreme Court Taxing Office ex p John Singh & Co [1997] 1 Costs LR 49, the law applicable to it was Regulations 14, 15 and 16 of the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 (these provisions are similar to Regulations 9, 10, 11 of the Costs in Criminal Cases (General) Regulations 1986). The claimant was dissatisfied with the taxation of costs made in a review by the appropriate authority (a non-judicial officer) in a criminal case. He appealed to a taxation master with no success. He then asked the taxation master to certify that the decision in the taxation involved a question of principle of general importance to allow him to appeal to a High Court Judge. The taxation master refused to certify and he then applied for judicial review.

34.The English Court of Appeal held that, a decision of a taxation master, being a decision made by a superior court, is not amenable to judicial review. But the Court of Appeal agreed with the concession made by the counsel for the taxing master in his/her submission that the High Court had inherent jurisdiction that was only to be exercised in extremely exceptional circumstances to overturn a decision a taxing master made in the exercise of his discretion to refuse to issue a certificate so as to avoid real injustice. The Court referred to the judgment of Woolf J on costs in a civil case, namely R v The Taxing Officer, ex p Bee-Line Roadways International Limited, 5/2/1982, transcript DC/234/81. Woolf J found that the High Court had an inherent jurisdiction to control the exercise of the authority of the court delegated to the taxing master where there was a lacuna in the rules.  In John Singh & Co, the Court of Appeal agreed with the decision of the taxing master not to issue the certificate. The appeal was in the end dismissed.

35.In R (Brewer) v Supreme Court Costs Office [2007] 1 Costs LR 20, the law applicable to it was the Costs in Criminal Cases (General) Regulations 1986. The Divisional Court of the Queen’s Bench Division was also dealing with the question of a taxing master’s refusal to issue a certificate with the result that the claimant could not appeal to the High Court. Following John Singh & Co, the Divisional Court held that the High Court could exercise the inherent jurisdiction in rare situations: see paragraphs 18 to 20 of the judgment. The Divisional Court found that there was real injustice in that case and remitted it to the taxing master and ordered him to tax the costs afresh.

36.Apart from the two cases above which have to do with costs in criminal cases, Ms Wong also referred us to two other decided cases that are concerned with costs in civil proceedings.

37.Ferris J discussed Bee-Line Roadways in detail in Re Macro (Ipswich) Ltd [1996] 1 All ER 814: see 821h to 824d. The matter arose as the taxing master ordered that the taxation proceedings be adjourned until after the substantive appeal of the case in question had been heard. Dissatisfied with the adjournment, the claimant intended to appeal to a High Court judge. Although Order 62 of the English Rules of the High Court provided a mechanism to review costs in general situations, it did not contain any provisions for appeal in this unusual situation. Order 58 gave the right of appeal to the High Court from a master’s decision but it did not cover an appeal from the decision of a taxing master. Citing Bee-Line Roadways, Ferris J found that under this situation, the High Court had the inherent jurisdiction to control its own proceedings, including proceedings for the taxation of costs conducted by taxing masters as delegates of High Court Judges. Ferris J in the end accepted that the claimant might appeal to a High Court Judge and allowed the appeal.

38.The other case was Riniker v University College London [2001] 1 WLR 13. In that case, the High Court refused to grant leave to appeal to the Court of Appeal against the decision of a taxing master. The English Court of Appeal held that in view of the clear terms of the legal provision (section 54(4) of the Access to Justice Act 1999) regarding the decision of a High Court Judge to refuse to grant leave to appeal, the Court of Appeal did not have the inherent jurisdiction to hear appeals. As regards the other orders of the High Court, namely an order for costs in an application for leave to appeal to be summarily assessed and refusal of an application for an adjournment, although the Court of Appeal had the power to grant leave to appeal, it found that there was no basis to interfere with the exercise of discretion by a High Court Judge. Leave to appeal against the other orders of the High Court Judge was therefore refused.

39.Mr Leung submitted that the above English cases were not sufficient to support Ms Wong’s argument as there were obvious differences between the laws of Hong Kong and those of the England.

40.The relevant English laws, be they the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 or the Costs in Criminal Cases (General) Regulations 1986, have all created an appeal mechanism, albeit a relevant certificate, which shows that the taxation of costs involves a question of principle of general importance, must be obtained before an appeal can be made to a judge. Nevertheless, when enacting the relevant legislation, the legislature of Hong Kong deliberately chose not to adopt the English mechanism regarding appeals against taxation. In England, the appropriate authority did not have to be a judicial officer. In Hong Kong, the taxing authority must be a judicial officer. This is yet another important difference. Since in Hong Kong, the taxation of costs proceedings are all dealt with by judicial officers, it is therefore unnecessary to emulate the English system to create a taxation of costs mechanism that allows three reviews and appeals.

41.In paragraphs 31(1) and (2) of So Wing Keung v Sing Tao Ltd & Anr [2005] 2 HKLRD 11, the Court of Appeal stressed that it was necessary to recognize the limits of the principle of inherent jurisdiction. Where the jurisdiction of a court has already been expressly defined by statute, there is no room for it to exercise any jurisdiction outside the power defined, on the strength of the inherent jurisdiction. In other words, the inherent jurisdiction may not conflict with the express provision in a statute.  The English Court of Appeal reached the same judgment regarding jurisdiction in Riniker v University College London: see paragraphs 10 to 12 of the judgment.

42.We agree with the submission of Mr Leung. As Woolf J said in Bee-Line Roadways and Ferris J said in Re Macro (Ipswich) Ltd, when the High Court exercised its inherent jurisdiction, it was to fill the lacuna in the Rules of the High Court. In the present case, the absence of express provision in the Ordinance and the Rules to allow further review or appeal against a decision made in a review by a taxing authority is not the result of any lacuna in the law but rather a deliberate stipulation by the legislature not to confer the right to do so. In our view, John Singh & Co and R (Brewer)are not applicable to the situation of Hong Kong.

43.Mr Leung also pointed out that in paragraph 36 of PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337, the Court of Final Appeal said in the absence of an express power of a particular kind in an ordinance, the question arises in respect of a superior court is whether it has an inherent jurisdiction. In respect of an inferior court, the question is whether there is implied power. The test for determining whether an inferior court has an implied power is that there has to be statutory jurisdiction expressly conferred on it from which implied power may derive and that such an implied power is one that is reasonably required in the effective exercise of the power expressly conferred: see paragraphs 36, 40 and 60 of the judgment and paragraphs 39 and 40 of Yeung Siu Keung v HKSAR (2006) 9 HKCFAR 144, another Court of Final Appeal case.

44.The present case concerns the powers of the District Court. We agree with the submission of Mr Leung that as an inferior court, the District Court does not have the implied power to further review a decision made by a taxing authority in a review or deal with an appeal from the said decision. First, there is no statutory jurisdiction expressly provided to derive any implied power therefrom. Further, the implied power is not what is reasonably required for the effective exercise of a power that has for the time being been expressly conferred on it. As we have indicated above, the taxation of costs proceedings in Hong Kong are all dealt with by judicial officers. There is first a taxation hearing in court followed by the right to review by court. A claimant or any interested party may request the taxing authority to give its reasons for decision in writing. We do not think that the District Court has to rely on any implied power to effectively exercise its statutory jurisdiction.

45.We do not accept the argument of Ms Wong. We do not think that a District Judge has any inherent or implied power to further review a decision the taxing authority made on review or to hear an appeal from that decision.

Other Matters

46.The appellant argued that sections 20 and 21 of the Ordinance are not applicable to the order Master Mak made on 30 June 2011 that he should pay the costs of the Department of Justice in the review hearing assessed at $63,312, on the basis that the order was made for the first time. He claimed that this order was subject to review or appeal.

47.We do not accept this argument. The said order and the taxation, made during the review hearing, was part and parcel of the decision of the review. Any decision made in a review is final and conclusive. The appellant does not have the right to further review or appeal.

Conclusion and orders

48.We dismiss the appeal and make the following costs order nisi.

49.Since the appeal involves questions of law and we have appointed an amicus curiae to assist the court, we are of the view that the proper order to make is to make no order as to costs and each party is to bear its own costs. If there is no application for variation within 14 days from the day of the handing down of the judgment, the costs order nisi will become absolute.

The plaintiff (appellant) in person, present

David Leung SC, Deputy Director of Public Prosecutions and Jonathan Lin, Senior Public Prosecutor, of the Department of Justice, for the defendant (respondent)

Maggie PK Wong, amicus curiae

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law.