HKSAR v. Mark Richard Charlton Sutherland

HCMA 425/2014

[2019] HKCFI 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 425 OF 2014

(ON APPEAL FROM KCCC NO 4933 OF 2012)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The applicant applies out of time for a certificate that two points of law of great and general importance are involved in the judgment of this Court, dated 15 May 2017[1], namely:

(i)   Whether the Court of Appeal has jurisdiction to entertain an appeal brought pursuant to ss. 19(2) and 19(3)(a) of the Costs in Criminal Cases Ordinance Cap 492, by virtue of the provisions of s. 113 and s. 118(1)(d) of the Magistrates Ordinance Cap 227 in the light of the mandatory requirement of s. 19(3)(a) that the appeal be heard by the Court of First Instance of the High Court? (“the 1^st question”)

(ii)   Whether the conduct covered by the words “seriously improper act or omission...or other serious misconduct” in s. 18 of the Costs in Criminal Cases Ordinance Cap 492 includes conduct beyond that which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty, or which would involve a significant breach of a substantial duty imposed by a relevant code of professional conduct; so as to include “conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion whether or not such conduct violates the letter of a professional code”? (“the 2^nd question”)

2.Following the directions of Master Cheung, deputy registrar, on 11 October 2018, that upon service of written submissions by the parties, unless otherwise directed by the court on its own motion or upon an application made by the parties for an oral hearing, the application should be determined on the papers without an oral hearing, we have received no request for an oral hearing from either party.  Indeed, prior to Master Cheung’s directions, the applicant’s solicitors had already indicated, by letter of 9 October 2018, that the Court might consider dealing with the matter on the papers.

3.Accordingly, we consider that this application may properly be determined on the papers.

4.The Notice of Motion heralding the above two questions was filed on 5 October 2018, more than 16 months after the judgment of this Court was handed down (and more than 15 months out of time), together with an affidavit of the same date seeking to explain the delay.  The fact that this application is being made so far out of time would be remarkable enough given that the applicant is a practising barrister (and former solicitor) who must be taken to be familiar with the importance of time limits and procedures for appeals to the Court of Final Appeal.  That the application is made in the context of a judgment of this Court criticising the applicant for abusing the processes of the court below and not acting in good faith when mounting applications for stay and review designed to delay and/or frustrate those proceedings[2], it is astonishing.

5.The importance of compliance with time limits was explained by this Court in HKSAR v Shoki Fatuma Ramadhani[3] in the following terms, at paragraph 11:

“The requirements that applications be made within prescribed periods serve the legitimate purpose of ensuring that it is possible to constitute the same panel as made the decision, that the relevant files are available to the Court and that the Court has a working memory of the proceedings in respect of which the application is made. Of course, the longer the delay the greater the difficulties that the Court faces. All of those purposes were thwarted by the lapse of time between the handing down of the decision and the filing of this application.”

6.It will be noted that by the time the applicant before us filed his Notice of Motion, one member of the Court, namely Lunn VP, had retired from the permanent judiciary, as a result of which this Court has been obliged to find another Justice of Appeal to take his place and read into the voluminous papers and lengthy written judgment in this case, with which the remaining two judges have also had to re‑familiarise themselves more than 16 months after the appeal has been heard and determined.

7.The applicant has endeavoured to explain that his financial difficulties and the obtaining of legal opinions from leading and junior counsel in London have led to the delay in appealing this matter.  As this Court has said in HKSAR v Yip Kim Po & Another[4], at paragraphs 6‑7:

“6. …There are good reasons both in principle and for practical purposes for the time limits in practice directions relating to appeals. One practical consideration is that they allow the three judges who dealt with a particular appeal, particularly a factually complex one, to retain the papers and consider the issue while matters are relatively fresh in their minds before the appeal papers are despatched to be stored, as they were in this case. ...

7.  We wish to make clear to the profession that the obtaining of advice from leading counsel in London or elsewhere is not a good reason for ignoring the practice directions governing the procedures for further appeals to the Court of Final Appeal, nor should it be assumed that this Court is likely to be impressed by such a course into granting leave out of time.”

8.We do not see why the applicant felt he must obtain the services of leading counsel outside Hong Kong, or that the issue is of such a nature as to require the expertise of foreign counsel; nor do we accept that either that explanation or his alleged financial predicament is any justification for waiting more than 16 months before signifying his intention of appealing the judgment of this Court to the Court of Final Appeal.

9.As for the merits of the proposed application under the 1^st question, this is the first time that the question of jurisdiction has been challenged by the applicant, it having been expressly accepted by leading counsel on his behalf at the hearing before us that the matter should be heard by the Court of Appeal, in conjunction with the appeal against conviction.  He pointed out that the order for consolidation of the two cases had been made following consultation with the parties so as “to enable the hearing of both appeals to take place in the most cost‑effective, efficient and expeditious manner, which will assist the Court and save time”[5].  It may be noted that the Court had itself raised the issue of jurisdiction with the parties[6] and received written and oral submissions on the matter.  We were satisfied for the reasons given that the Court did have jurisdiction to hear the applicant’s appeal.

10.In light of the applicant’s position at the hearing of the appeal, it is difficult to see how his contention now being made of prejudice from having the two appeals heard together[7] can be sustained.  Mr Kuan, for the respondent, has further drawn our attention to the principle adopted by the Court of Final Appeal in Flywin Co Ltd v Strong & Associates Ltd[8], where the Court cited with approval the statement of the Privy Council in Ahamath v Sariffa Umma[9], that:

“It must only be under very exceptional circumstances that an issue dropped in the intermediate Court of Appeal and for that reason not dealt with or referred to by that Court can be revived before this Board.”

11.He argues that it can hardly amount to “very exceptional circumstances” where the applicant, who was represented by an experienced legal team throughout the hearing, not only accepted but encouraged the Court of Appeal to assume jurisdiction.

12.As for the 2^nd question, again, it became clear in the appeal before us that “(the applicant’s leading counsel) took no issue with the principles distilled by the magistrate from the authorities in approaching applications for wasted costs in criminal cases”[10].  The question framed contends for a standard that was not advocated before the Court of Appeal and was not, therefore, the subject of argument.  In any event, the Court was, as was the magistrate, very conscious of the differences in the tests applicable in this area between the civil and criminal jurisdictions in Hong Kong and between the relevant legislation in this jurisdiction and in England and Wales; and it was acutely conscious of the very high threshold that must be attained in the criminal courts of Hong Kong when applying the Costs in Criminal Cases Ordinance[11].  It deemed the evidence of the applicant’s conduct meriting such an award to be overwhelming[12].

13.We are not prepared to grant a Certificate in respect of either of the questions proposed.  Accordingly, we refuse the application for a Certificate out of time.

Costs

14.The respondent makes an application for the costs of this application under section 13B of the Costs in Criminal Cases Ordinance on the basis that this application is wholly without merit.

15.It is our view that not only is this application woefully out of time for reasons this Court does not accept justify such a delay, but the applicant has raised new matters which were not the subject of argument at the appeal and are contrary to the position adopted by his then leading counsel.  We see no merit whatsoever in this application.

16.In the circumstances, we make an order nisi that the costs of the respondent in meeting this application be paid by the applicant, to be taxed if not agreed, such order to become absolute unless, within 14 days hereof, the applicant makes an application supported by written submissions served on the Court and the respondent to vary the order.  Any application to vary will be decided by the Court on paper, without an oral hearing.

Mr Franco Kuan SPP, of the Department of Justice, for the Respondent

The Applicant in person