HKSAR v. Chan Man Sum, Ivan

CACC 400 /2017

[2022] HKCA 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 400 OF 2017

(ON APPEAL FROM HCCC NO 240 OF 2017)

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DECISION ON COSTS

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Hon Macrae VP (giving the Decision on Costs of the Court):

1.On 8 June 2021, this Court allowed the applicant’s appeal against conviction but ordered that he should undergo a retrial on a fresh indictment: see HKSAR v Chan Man Sum Ivan (No 2) [2021] 3 HKLRD 94. Thereafter, the applicant applied for the costs of the appeal and the trial. Since the applicant was legally aided, the application is necessarily limited to his legal aid contributions made in respect of each set of proceedings. The respondent does not object to an order in the applicant’s favour so far as the costs of the appeal are concerned: however, the respondent does object to the costs of the trial being granted to the applicant.

2.It should be noted that the trial with which we are concerned was a retrial (or second trial), his appeal against conviction at his first trial having been allowed by this Court on 26 July 2017: see HKSAR v Chan Man Sum Ivan [2017] 4 HKLRD 368. The same Court, in a separate hearing, subsequently refused the applicant’s application for the costs incurred at the first trial on the grounds that he had clearly brought suspicion on himself. However, it granted him the costs of his successful appeal, namely his legal aid contribution of $31,900: see HKSAR v Chan Man Sum Ivan (Unrep., CACC 273/2015, 17 October 2017).

3.The basis now put forward by Mr Raymond Cheng, on behalf of the respondent, for objecting to the applicant being awarded the costs of his legal aid contribution at his retrial is that the applicant has again brought suspicion on himself and misled the prosecution into thinking that the case against him was stronger than it was. This suspicion is said to have arisen principally from the change in the applicant’s defence between the two trials. At the first trial, the applicant denied having had anything to do with the death of the deceased: at the second trial, he admitted killing the deceased but claimed his actions were either in self-defence or they amounted to manslaughter by way of an unlawful act.

4.Our approach is essentially a practical one. Whilst it is arguable to what extent suspicion can be said to arise by virtue of a change of defence, in circumstances where the applicant has now admitted causing the death of the deceased, even though there is still an issue as to the circumstances in which the death came about, the fact is that if we refuse the applicant the costs of his second trial, we are effectively refusing legal aid to an indigent applicant, who has been deemed eligible for legal aid, when he is likely to remain indigent and be deemed similarly eligible for legal aid at his further third trial. We bear in mind that the Court has already refused to grant the applicant his costs from the first trial on the grounds that he brought suspicion on himself when he was privately represented, which Ms Draycott SC, for the applicant, has put at about $4 million. Having succeeded at the appeal from his retrial (or second trial), we think that in these circumstances, costs should follow the event and the applicant should be awarded his trial costs as well, limited to his legal aid contribution. This will put him back in the position he was in for his second trial as a legally aided defendant.

5.Accordingly, we order that the applicant be granted his costs of both trial and appeal at his retrial, limited to his respective legal aid contributions.

Mr Raymond Cheng SADPP, of the Department of Justice, for the Respondent

Ms Charlotte Draycott SC, instructed by Khoo & Co, assigned by the Director of Legal Aid, for the Applicant