Case Document

100%Judiciary

FAMC No. 62 of 2018

[2019] HKCFA 44

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 425 OF 2014)

________________________

BETWEEN
	HKSAR	Respondent
	and
	MARK RICHARD CHARLTON SUTHERLAND	Applicant

________________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Cheung PJ and Mr Justice Chan NPJ

Date of Hearing and Determination: 13 November 2019

Date of Reasons for Determination: 19 November 2019

_____________________________

REASONS FOR DETERMINATION

_____________________________

Mr Justice Ribeiro PJ:

1.We dismissed this application for leave to appeal at the hearing for the reasons which we now provide.

A. The wasted costs order

2.The applicant was counsel for the defendant (a Mr Harjani) who faced a single charge of indecent assault. After trial before deputy magistrate Mr Lee Siu Ho,[1] which had been set down for two days’ hearing but which in fact lasted 19 days spanning 3½ months, not including the two earlier pre-trial review hearings,[2] the accused was convicted and sentenced to a term of 14 days’ imprisonment.

3.Following a hearing before the same magistrate, an order was made against the applicant under section 18 of the Costs in Criminal Cases Ordinance (“CCCO”)[3] requiring him to pay HK$180,000 in wasted costs. He was found to have seriously abused the process of the Court and to have indulged in seriously improper conduct at the trial. His client, the defendant, was ordered to pay prosecution costs in the sum of HK$15,000.

4.Appeals brought by the defendant against conviction and by the applicant against the wasted costs order were listed together before Zervos J.[4] On the applicant’s motion, his Lordship recused himself from hearing those appeals since he had previously sent a letter of complaint to the Hong Kong Bar Association concerning the applicant’s conduct in a different case. Zervos J was told that the parties had agreed that their two appeals should be consolidated and referred to the Court of Appeal for determination. He accordingly acceded to their application for such a referral.[5]

5.The referral had been made pursuant to section 118(1)(d) of the Magistrates Ordinance (“MO”)[6] and when the appeals came up for hearing, the Court of Appeal, of its own motion, raised a jurisdictional point as to whether it had power to deal with the applicant’s appeal given that CCCO section 19(3) provides that an appeal against a wasted costs order made by a magistrate “shall lie to the Court of First Instance”. Having heard argument, their Lordships were satisfied that the Court did have power to entertain the referral under MO section 113(1).

6.Their Lordships proceeded to hear both appeals and, with great reluctance in the light of the magistrate’s unimpeachable findings and the resultant unfairness to the complainant, quashed the defendant’s conviction on the ground that “it would be unconscionable for us to allow this conviction to stand, given the bizarre and wholly unacceptable way the defendant’s case was handled by his counsel before the magistrate”.[7] They proceeded to dismiss the applicant’s appeal against the wasted costs order, commenting that the applicant’s behaviour represented “the most disgraceful and egregious display of conduct by defence counsel, over a protracted and sustained period, which any of us have ever encountered in any capacity in any jurisdiction before”.[8]

B. The application for leave to appeal

7.The Court of Appeal refused to certify two questions said by the applicant to be of great and general importance for the purposes of an appeal to this Court[9]. An application for leave to appeal was then made before the Appeal Committee putting forward the same questions.

8.Pursuant to Rule 7 of the Hong Kong Court of Final Appeal Rules,[10] the Registrar issued a summons calling upon the applicant to show cause before the Appeal Committee why the application should not be dismissed. Having considered the submissions made on the applicant’s behalf in response, the Appeal Committee decided to afford the application an oral hearing, but limited to only one of those questions, namely the jurisdictional question formulated as follows:

“Whether the Court of Appeal has jurisdiction to entertain an appeal brought pursuant to sections 19(2) and 19(3)(a) of the CCCO, by virtue of the provisions of section 113 and section118(1)(d) of the MO in the light of the mandatory requirement of section19(3)(a) that the appeal be heard by the Court of First Instance of the High Court?”

C. The jurisdictional question

9.By CCCO section 19(2), a legal representative against whom a wasted costs order has been made is given a right of appeal. Section 19(3)(a) specifies that where the order is made by a magistrate, “the appeal shall lie to the Court of First Instance”. Those words are relied on for the contention that the Court of Appeal lacked jurisdiction to entertain the referral.

10.Macrae JA, giving the judgment of the Court of Appeal, held that the combined effect of MO sections 113(1) and 118(1)(d) was to confer the necessary jurisdiction on the Court of Appeal.

11.Section 113(1) which, like CCCO section 19(3)(a), provides for a right of appeal, states as follows:

“Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”

12.Where section 113(1) is engaged, MO section 118(1)(d) authorises the judge to reserve the appeal to the Court of Appeal:

“... the judge may reserve the appeal, or any point in the appeal for the consideration of the Court of Appeal, or may direct the appeal, or point in the appeal, to be argued before the Court of Appeal; and the Court of Appeal shall have power to hear and determine any such appeal or point so reserved or so directed to be argued and may in connection therewith exercise all or any of the powers conferred on a judge by this Part or may remit the matter to the judge with the opinion or decision of the Court of Appeal and may also make any such other order in relation to the matter and such orders as to costs as to the Court of Appeal shall seem fit...”

13.Adopting an approach which properly takes account of its context and purpose, Macrae JA construed section 113(1) as applicable to the applicant as a “person aggrieved by… [an] order… in connection with [an] offence”, to which offence he “did not plead guilty or admit the truth of the information or complaint”. Section 113(1) was thus engaged, so that the appeal had validly been referred to the Court of Appeal under section 118(1)(d).[11] As Macrae JA pointed out:

“Were it otherwise, any related costs appeal could not follow the referral of the substantive appeal where, as here, the costs appeal is inextricably bound up with the conduct of counsel in the substantive appeal. The divorcing of the two hearings, requiring separate hearings in different courts, would hardly be conducive to a regime designed to proscribe the wasting of costs.”[12]

14.The Court of Appeal’s construction is plainly correct and the contrary is not reasonably arguable.

15.Orders to pay costs, including wasted costs orders, are of their nature incidental to the substantive proceedings in respect of which they are made. If costs orders are to be challenged on appeal, an examination of the course and outcome of the substantive proceedings will generally be necessary. Hence, if there is an appeal against conviction on the substantive offence and also an appeal against a costs order (whether against a party or against a legal representative) one would naturally expect the appeals to be dealt with together. To do otherwise would be unsatisfactory, involving duplicated effort, increased costs and the possibility of inconsistent outcomes.

16.The right of appeal conferred by CCCO section 19 from a magistrate to a judge against costs orders made is plainly intended to operate in tandem with MO section 113(1) which concurrently confers a right of appeal from a magistrate to a judge against a substantive conviction. There is no inconsistency between the two rights of appeal and the judge seized of the substantive matter would normally be expected to deal simultaneously with all incidental questions regarding costs.

17.There can be no doubt that MO section 118(1)(d) empowers the judge to reserve the substantive appeal to the Court of Appeal and it would be surprising if the relevant provisions had to be construed as requiring the substantive appeal to be severed from questions regarding incidental orders as to costs, whether made against the defendant or the legal representative under the CCCO.

18.The construction adopted by Macrae JA plainly aligns both with the wording of section 113(1) and with the evident legislative intent which is to permit all questions of costs to be reserved by the judge to the Court of Appeal along with the substantive appeal. There is no plausible reason for adopting a narrow construction of MO section 113(1) so as to deprive the Court of Appeal of jurisdiction to deal with a wasted costs order on a referral under section 118(1)(d).

19.In support of the challenge to the Court of Appeal’s jurisdiction, the applicant sought to contend that a person seeking to appeal against an order made under section 18 of the CCCO “is not ‘a person aggrieved’ of whom it could be said that he ‘did not plead guilty or admit the truth of the information or complaint’ for the purposes of section 113(1) of the MO” and that consequently sections 113(1) and 118(1)(d) are not engaged.

20.We do not consider that proposition reasonably arguable. Section 113(1) is not confined to appeals brought by convicted defendants. It also applies to “Any person aggrieved by any ... order or determination of a magistrate in respect of or in connection with any offence”, such persons not having been convicted of any offence. Section 113(1) covers convicted defendants who did not plead guilty, allowing them to appeal against the conviction. In cases where a defendant did plead guilty, section 113(2) restricts the appeal to one against sentence.[13] Those provisions are not relevant to the other class of persons covered by section 113(1). They are given a right of appeal against the magistrate’s “order or determination ... in respect of or in connection with any offence” where there is no question of any prior plea of guilty and hence no need to restrict the scope of the appeal. In other words, the phrase “who did not plead guilty (etc)” is irrelevant to persons other than convicted defendants covered by section 113(1).

21.Mr Clifford Smith SC,[14] also submitted that it was “undesirable” that counsel seeking to appeal a wasted costs order against him should have his appeal heard by the same tribunal and at the same time as his former client’s appeal on the ground that a “conflict” would arise, at least where the former client’s ground of appeal is that counsel’s conduct of the trial was flagrantly incompetent. We see no “conflict” arising. Counsel in such circumstances would no doubt be anxious to refute allegations both of flagrant incompetence and of having conducted himself in such a manner as to justify a wasted costs order. The tribunal, whether at first instance or on appeal, would have to rule on both issues, but no “conflict” arises in any respect.

22.For the aforesaid reasons, the application was dismissed.