HKSAR v. Yeung Ho Nam

CACC 361/2018

[2019] HKCA 1285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 361 OF 2018

(ON APPEAL FROM HCCC NO 285 OF 2018)

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JUDGMENT ON COSTS

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Hon Zervos JA (giving the Judgment on Costs of the Court):

1.On 25 September 2019, this Court allowed the appellant’s appeal against sentence in respect of two counts of unlawful homosexual buggery with a man under the age of 16 and over the age of 13, contrary to section 118C(a) of the Crimes Ordinance, Cap 200, and reduced his total sentence of 2 years and 6 months’ imprisonment to 10 months’ imprisonment.

2.The appellant now applies for costs of the appeal.  He specifically seeks the costs of (1) the leave application which was treated as the substantive appeal hearing; (2) the legal advice prior to the application for leave to appeal; (3) the application for bail pending appeal; and (4) the present costs application.

3.The application is made pursuant to section 9(2)(b) of the Costs in Criminal Cases Ordinance, Cap 492, (the Ordinance), which provides that in relation to a sentence appeal the Court of Appeal may award the appellant’s costs where it imposes a less severe punishment to the one that was imposed in the court below. 

4.The general principles applicable to costs in criminal cases are set out under section 15 of the Ordinance.  It provides, amongst other things, that the costs awarded in any criminal proceedings should be “just and reasonable” and should not be punitive but should be such sums as appear reasonably sufficient to compensate a party for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto.

5.It was held in HKSAR v Tang Siu Fung (No 2) [2012] 2 HKLRD 1038 that orders for costs should normally be made in favour of a successful appellant unless there are specific reasons of opposition for not doing so from the respondent.  Such reasons, include the grounds of appeal and the conduct of the various parties in the appeal hearing, including the conduct of the legal representatives for the appellant.

6.In the circumstances, a successful appellant would normally be awarded his costs on appeal provided that the expenses are properly incurred in the course of those proceedings, including any proceedings preliminary or incidental thereto.

7.In light of the grounds of the appeal and the conduct of the appellant in the course of this appeal, resulting in a successful outcome against his sentence, there is no reason why, in those circumstances, an order for costs should not follow the event.  In fact, the respondent raises no objection to costs to be awarded to the appellant for items (1), (2) and (4), to be taxed if not agreed, with a certificate for two counsel.

8.The only issue between the parties is whether costs should be awarded to the appellant for item (3).

9.The costs of a bail application pending appeal would be regarded as an expense incurred by an appellant in the course of the sentence appeal proceedings.  As to whether it was “properly” incurred so as to entitle a successful appellant to such costs, would depend upon the circumstances of the case.  In the present case, bail was refused by a Single Judge but he ordered that the case be fixed for an expedited hearing before a full division of the Court of Appeal, clearly cognisant that the appellant had a reasonable prospect of success in having his sentence reduced.

10.This was an unusual case as pointed out by the appellant in his submissions, resulting in him having to endure the spectre of a lengthy term of imprisonment because the penalty provision was not in line with relevant legal principles and public policy, as stated in previous court decisions, and which was accepted by the executive authorities warranted reform.

11.It had been conceded in separate judicial review proceedings that a remedial interpretation of section 118C(a) should be adopted, and the penalty provision ought to be read down from a maximum of life imprisonment to 5 years’ imprisonment in relation to buggery with a boy under the age of 16 but above the age of 13, to make it constitutionally compliant: Yeung Chu Wing v Secretary for Justice [2019] 3 HKLRD 238.  Accordingly, no resistance was advanced against the constitutional challenge in the present appeal. 

12.The respondent opposes the appellant’s application for costs for his bail application.  The respondent argues that the bail application was refused, and even though the appellant was successful in his sentence appeal he still had to serve a prison sentence until the Court handed down its judgment.  His sentence had been reduced from 2 years and 6 months’ imprisonment to 10 months’ imprisonment, which resulted in his immediate release when judgment was delivered. 

13.The appellant argues that although his bail application was unsuccessful, the Single Judge expedited his appeal because it was clearly apparent that the sentence warranted correction.  He also argues that the application was properly made and could not be considered as being frivolous in the circumstances of this case. 

14.We agree with the submissions of the appellant. The appellant had a legitimate sense of grievance in relation to the sentence that was imposed on him at a time when the executive authorities had recognised the inequity of the penalty provision in relation to the offence for which he had been convicted.  The appeal against sentence and related proceedings were properly incurred expenses in order to right a wrong that could have been avoided.  This has been recognised by the respondent in its acknowledgement for liability of the appellant’s costs for the other three items being claimed. Whilst the application for bail was refused, it was not without merit and initiated an expedited hearing of the sentence appeal, resulting in the correction of the appellant’s sentence and his immediate release.  See HKSAR v Yeung Chun (unreported, CACC 438/2014 [2016] HKEC 928), where the grant of bail may be the means of added distress and hardship for the appellant if the appellate court requires him to return to custody, even for a short time. 

15.This was not a case where the appellant has made an inappropriate or unnecessary bail application in the course of appealing his sentence.  We consider that in the circumstances of this case it was a proper and appropriate application for the appellant to make, which was not accompanied by any inappropriate conduct that would provide reasons against the award of costs.  Even though the bail application was unsuccessful, it was an expense properly incurred for which the appellant should be compensated. 

16.It follows from what we have said that we order the respondent to pay the appellant’s costs of the appeal in relation to all four items, including item (3), with a certificate for two counsel.

Mr Derek Wong, SPP, of the Department of Justice, for the respondent

Dr Gerard McCoy, SC and Mr Randy Shek, instructed by Vidler & Co, for the appellant