HKSAR v. Nwc

HCMA 336/2017

[2019] HKCFI 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 336 OF 2017

(ON APPEAL FROM FLCC NO 286 OF 2017)

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Before: Hon Lisa Wong J in Chambers

Date of Hearing: 28 March 2019

Date of Decision: 9 April 2019

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D E C I S I O N

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The appeal

1.Before the court is the appellant’s “appeal”, by a notice of appeal issued on 25February 2019 under Order 58 of the Rules of the High Court (Cap 4A) (“RHC”), against Master Angela Kot’s decision dated 21 February 2019, taxing the costs allowed and payable to the appellant pursuant to the costs order made herein by Deputy High Court Judge Anthony Kwok on 18 April 2018.

Background

2.On 14 June 2017, the appellant was acquitted, after a 2-day trial before a magistrate under FLCC 286/2017, of a count of “attempting to mislead police officer by false information” contrary to s 63 of the Police Force Ordinance (Cap 232).  She applied for, but was denied, costs.  The appellant appealed.

3.As the appellant had by then ceased to be represented[1], she had not in her notice of appeal identified the statutory provision pursuant to which she lodged the appeal.  It appears to me that she must have done so in reliance on s 113(1) of the Magistrates Ordinance (Cap 227) (“MO”), which provides that any person who is aggrieved by any determination of a magistrate in respect of or in connection with any offence and who did not plead guilty or admit the truth of the information or complaint, may appeal from the determination to a judge of the Court of First Instance (“CFI”).

4.Pursuant to s 8 of the Costs in Criminal Cases Ordinance (Cap 294) (“CCCO”), where a judge allows an appeal to which s 113 of the MO applies, he may, in the exercise of his powers under s 120[2] of that Ordinance, order that costs be awarded to the defendant.  Section 20(1) of the CCCO further provides that where an order for costs is made by a court or a judge under the CCCO, the court or the judge may order that those costs be taxed.  By a judgment handed down on 18 April 2018, DHCJ Kwok allowed the appellant’s appeal and awarded her costs of both the trial before the magistrate and the appeal (“Costs”) to be taxed, if not agreed.

5.Where an order that costs be taxed is made under s 20(1) of the CCCO by a judge of the CFI, s 20(2)(b) provides for those costs to be taxed by the Registrar of the High Court.  Rule 5(1) of the Costs in Criminal Cases Rules (Cap 492A) (“CCCR”) also stipulates that for the purposes of s 20 of the CCCO, where a court orders that costs are to be taxed, those costs must be taxed by the taxing authority. Rule 5(2)(b) then designates the Registrar of the High Court as the taxing authority in the case of proceedings in the CFI or the Court of Appeal, subject to the power of the taxing authority under rule 5(3) to appoint or authorise the appointment of public officers as taxing officers to act on its behalf.

6.On 16 July 2018, the appellant filed with the High Court and served on the respondent a bill of costs (“Bill”) for the total sum of $184,575.50 together with a notice appointing the taxing master to commence taxation of the Costs.  In response, the respondent filed and served a list of objections (“Objections”) on 2 August 2018. 

7.The taxation of the Costs first came before Master Caroline Chow for a call-over hearing on 21 August 2018.  The master directed the parties to narrow down the items in dispute and considered making offers pursuant to Order 62A of the RHC, failing which the taxing master may impose costs sanctions.  She also ordered the appellant (as the receiving party) to lodge a taxation bundle, taking into account the Objections, before the taxation hearing.  The master apparently so ordered and directed pursuant to paragraphs 4, 5, 28 and 29 of Practice Direction 14.3 (Costs).  I pause to observe that paragraph 1 of PD14.3 expressly stipulates that those directions apply to civil proceedings in the High Court, the District Court and the Lands Tribunal and costs-only proceedings in the High Court and the District Court.  The matter before her was concerned with the taxation of costs in criminal proceedings.  The applicable directions should be those contained in PD14.4 (Taxation of Costs in Criminal Cases): see paragraph 2 of PD14.3 and paragraph 1.1 of PD14.4.

8.On 12 September 2018, the appellant applied by letter to Master Chow for summary assessment of the Costs.  Her reasoning was that if PD14.3 were applicable, then she wished and could seek summary assessment of the Costs by relying on those directions.  On 26September 2018, Master Chow disposed of the application on paper as follows: “Costs order of Deputy High Court Judge Anthony Kwok dated 18 April 2018 referred.  There is no basis for applicant to seek summary assessment.” 

9.Dissatisfied with such ruling, the appellant issued a notice of appeal on 8 October 2018 under Order 58 of the RHC.  The appeal came before Mr Justice Wilson Chan on 6 November 2018, at which hearing the parties were given time to discuss the matter and were eventually able to come to terms.  By consent, his Lordship

(1) dismissed the appellant’s notice of appeal with no order as to costs;

(2) set aside the orders and directions given by Master Chow on 21 August 2018;[3] and

(3) gave directions for the hearing for the taxation of the Costs.

10.The taxation hearing took place before Master Kot on 21 February 2019. The appellant appeared in person.

11.By a “notice to the party commencing the proceedings for taxation” issued on 6 March 2019 pursuant to rule 7(4)[4] of the CCCR, Master Kot informed the parties that that she has taxed the Costs as follows:

	“Party & Party
Profit costs	$120,218.00
Disbursements	$ 0.00
Cost of taxation	$ 0.00
Taxing fee	$ 6,812.00
Total	$127,030.00”

12.On 14 March 2019, Master Kot provided the parties with an itemised breakdown of the time and costs allowed in respect of each item of the Bill, which increased the allowed profit costs to $137,543.50.  She also allowed the taxing fee in full at $9,384.  Consequently, the total amount of the taxed Costs rose to $146,927.50.  It was also indicated that the court would issue a revised “notice to the party commencing the proceedings for taxation” if it did not “hear from any parties for further clarification within 14 days”. 

13.By a letter dated 25 March 2019, the respondent informed the court and the appellant that its record showed that the amount of profit costs allowed should be $137,297.50, instead of $137,543.50.

Intended purpose of this “appeal”

14.The appellant issued the notice of appeal with which we are concerned on 25 February 2019, which was just 4 days after the taxation hearing and before the issuance of the “notice to the party commencing the proceedings for taxation” dated 6 March 2019.

15.Under s 21 of the CCCO, a party to the proceedings in respect of whom costs have been taxed under s 20(2)(b) who is aggrieved by that taxation may apply for the taxation to be reviewed to the Registrar of the High Court who shall, on receipt of any such application, review the taxation accordingly.  Pursuant to rule 8(1) and (2) of the CCCR, a claimant or an interested party who is aggrieved with a taxation of costs under rule 7 may apply for a review of that taxation within 21 days of the receipt of notification of the costs allowed and payable by virtue of rule 7(4).

16.As at the hearing on 28 March 2019, the Master had not issued any revised “notice to the party commencing the proceedings for taxation” so that the 21 days within which the appellant can apply for a review of the taxation had not begun to run.  In other words, the appellant had yet to exercise her right to a review of the taxation.

17.By this “appeal”, the appellant is not asking for the Master’s decision on any particular items of the Bill to be overruled, reversed or revised.  Rather, she invites this court to clarify certain points of law or principle so as to provide guidance in the review, which she fully intends to apply for.

No appeal from taxation of costs in criminal cases

18.A judge of the CFI has no jurisdiction to entertain an appeal from a decision made by a master of the High Court in the taxation of costs in a criminal case under the CCCR.

19.This jurisdictional question first came before Jeremy Poon J (as he then was) in HKSAR v Wong Tsz Yuk, HCMA 183/2008, unreported, 1 December 2009. Wong Tsz Yuk was approved by the Court of Appeal in Jiang Hai Pu v Department of Justice [2016] 5 HKLRD 197, per Kwan JA at [29].

20.As Mr Justice Poon noted in Wong Tsz Yuk at [17], Hong Kong courts’ jurisdiction and powers to award costs, and then to tax costs and review taxation of costs, in criminal cases are dependent entirely on statute. Neither the CCCO nor the CCCR provides for any further review of taxation beyond that by the taxing authority under s 21 of the CCCO and rule 8 of the CCCR (paragraph [15] above).  The CCCO and the CCCR is intended to be a complete and self-contained code regulating the law and practices in relation to costs in criminal cases, including the right to review taxation of costs, at all levels of court except the Court of Final Appeal.  The intention to limit the right to review taxation costs in criminal cases to the taxing authority in s 21 of the CCCO and rule 8 of the CCCR is deliberate and clear.  See Wong Tsz Yuk at [36] and Jiang Hai Pu at [28]-[30].

21.The appellant seeks to distinguish Wong Tsz Yuk and Jiang Hai Pu on the basis that, in those cases, the appeal against the taxing authority’s decision on taxation was lodged after a review of such decision by the taxing authority.  She maintains that a right of appeal to a judge of the CFI exists before review of the taxation by the taxing authority. 

22.I am afraid I can see no such distinction.  The reason why it was held in Wong Tsz Yuk and Jiang Hai Pu that there could be no review or appeal before a judge of the CFI against a decision on the taxation of criminal costs by the taxing authority is the absence of express provision in the CCCO or the CCCR for such a review or appeal.  Following the same reasoning, there is no provision in either the CCCO or the CCCR for a review or appeal before a judge of the CFI against a decision on the taxation of criminal costs before review of such taxation by the taxing authority.  In any event, I find the suggestion of a right of appeal to a judge of the CFI before the review, and therefore finalisation, of the taxation by the taxing authority to be defying common sense.

23.I have not overlooked the right of appeal under s 19(1) and (3) of the CCCO and rule 4(1) of the CCCR, referred to by the respondent.  Section 19(1) and (3) reads:

“(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 Appeal.”

24.Insofar as it is material, it is also stipulated in rule 4(1) that:

“(1) For the purposes of section 19 of the Ordinance—

(a) any of the parties to the proceedings where a court has made an order that costs be awarded; …

can appeal—

(i) in the case of an order made by a magistrates’ court, to the Court of First Instance; and

(ii) in the case of an order made by the District Court or the Court of First Instance, to the Court of Appeal.” (emphasis added)

25.I disgaree with the respondent’s submission that the present appeal is incompetent only because it is premature in that the appellant has not yet applied for a review of the taxation under rule 8 of the CCCR and that the appellant could and should only appeal against the taxation to the Court of Appeal under rule 4 after the completion of the review.  Section 19 and rule 4 apply only where a court or a judge has made an order that costs be awarded to any of the parties to the proceedings.  A decision taxing and fixing awarded costs at a certain amount is not such an order.

26.The appellant prays in aid Order 58 of the RHC, under which she purportedly issued the notice of appeal dated 25 February 2019. While the appellant is right that Order 58 is not, in its own terms, limited to an appeal from a judgment, order or decision of a master in a civil cause or matter, Order 1 rule 2(3) clearly excludes criminal proceedings from the application of the RHC save for a few specified orders which do not include Order 58.  To reinforce her reliance on Order 58, the appellant harps on the fact that her appeal by notice of appeal dated 8 October 2018, also issued under Order 58, was entertained by the court which, she says, the court should not do if Order 58 has no application to criminal proceedings.  I am not in a position to comment on a matter not dealt with by me.  However, I note that the order which Wilson Chan J was invited by consent between the parties to make on such notice of appeal was actually to dismiss the appellant’s appeal with no order as to costs.

27.It should by now become apparent that the “appeal” that the appellant seeks to convene by the notice of appeal dated 25 February 2019 is not an appeal in the proper sense.  As stated in paragraph 15 above, she is effectively trying to obtain an opinion from a judge of the CFI on various issues that had been held against her at the taxation hearing before the Maste with a view to influencing the Master when she reviews the taxation. I know of no such procedure, whether under the CCCO or CCCR or otherwise.  I have already concluded that a judge of the CFI has no jurisdiction to entertain an appeal, in the proper sense, from a decision made by a master of the High Court in the taxation of costs in a criminal case under the CCCR.  A fortiori, he would have no jurisdiction to entertain an “appeal” for the purpose intended by the appellant.

28.For this reason, it would not be right for me to address the questions for which the appellant attempts to seek answers by this “appeal”.

Disposition

29.To conclude, the appeal by the appellant’s notice of appeal dated 25 February 2019 is incompetent for want of jurisdiction and is hereby dismissed.

30.I also make an order nisi that there be no order as to costs.  If there is no application for variation within 14 days from the day of the handing down of this decision, the costs order nisi will become absolute.

The appellant appeared in person.

Ms Betty Fu, Senior Public Prosecutor of the Department of Justice, for the respondent