Secretary for Justice v. Lai Chee Ying

HCMA 138/2021

[2022] HKCFI 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 138 OF 2021

(ON APPEAL FROM WKCC 956 OF 2020)

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D E C I S I O N

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1.Following an unsuccessful appeal by way of Case Stated pursuant to s105 of the Magistrates Ordinance Cap. 227 by the Appellant, the Respondent applied for costs.

2.The Respondent was charged with one count of criminal intimidation, contrary to Section 24(a)(i) of the Crimes Ordinance Cap. 200.  The trial took place over 4 days from 20 to 28 August 2020 and the Respondent was found not guilty on 3 September 2020. The Appellant appealed against the Magistrate’s decision by way of Case Stated on 17 September 2020. 

3.Following the common practice, the Appellant drafted the Case and sought comments from solicitors for the Respondent.  In their reply, solicitors for the Respondent indicated that the Case should simply include all the transcripts of the witnesses together with exhibits and the Magistrate’s Brief Reasons for Verdict.  One can immediately see that the approach suggested, to say the least, was contrary to legal principles laid down by the Court of Appeal regarding appeal by way of case stated[1].

4.Given the disagreement between the parties, the Case was sent together with the objection from the Respondent to the Magistrate for her consideration. The Magistrate however did not accept the Case and instead prepared one on her own which likewise annexed with it 126 pages of transcripts of evidence, speeches from the respective parties together with her Brief Reasons for Verdict. Not satisfying with the Case prepared by the Magistrate, the Appellant then applied to this Court for an Order of Mandamus directing the Magistrate to amend her Case pursuant to s112 of the Magistrates Ordinance (the Mandamus Application). 

5.The Respondent opposed the Mandamus Application.  It was heard on 4 June 2021 and an Order for Mandamus was issued. As a result, the Magistrate signed the Case which had become a self-containing document setting out all the relevant facts and the reasons for her decision. 

6.The appeal was heard on 29 October 2021.  On 20 December 2021, judgment was handed down dismissing the appeal.

7.Section 120 of the Magistrates Ordinance provides that the judge may make such costs order as he thinks fit on any appeal to which s105 applies.  In other words, this Court enjoys a wide discretion in awarding costs.  In the present case, the Mandamus Application formed part of the appeal process.

8.The Appellant accepted in principle that costs should follow the event but argued that there were good reasons in the present case in departing from the norm and that the Respondent should only be entitled to no more than half of the costs as one of the issues posed to this Court for consideration was successful.  Further, the Appellant sought costs incurred in the Mandamus Application. 

9.It was held in HKSAR v Tang Siu Fung (No 2) [2]that good reasons included grounds of appeal advanced and conduct of various parties, including the legal representatives, in the appeal hearing.

10.As mentioned in the judgment dated 20 December 2021, the appeal hearing was delayed because the Magistrate refused to sign the Case prepared by the Department of Justice.  The Case initially prepared (the Initial Case) by the Department of Justice appeared, in my view, to be a fair and proper one which included all the relevant evidence and the reasons for the Magistrate’s direction. The Initial Case was sent to the solicitors for the Respondent for their agreement / comment but they only replied by essentially saying that the questions posed by the Appellant did not amount to any questions of law.  The main objection raised by the solicitors for the Respondent was that the decision to acquit was reached based on factual findings, namely a lack of cogent evidence from the prosecution witnesses, and hence no legal issue was involved. 

11.After certain observations made by this Court during the Mandamus Application hearing, such as the need for the inclusion of the contentions advanced by parties by that stage, which seemed to be superfluous given the clearly identified issues, the Respondent, with the inclusion of a summary of PW3’s evidence, agreed to the contents of the Initial Case.  As a matter of fact, the finalized Case differed insignificantly from the Initial Case and that PW3’s evidence added little to the completeness of the Case.  Had the solicitors for the Respondent adopted a more sensible approach, the need for the Mandamus Application could easily be avoided. 

12.In paragraph 28 of the judgment, this Court identified an error, namely the mens rea of the offence, made by the Magistrate in her decision.  The Appellant managed therefore to succeed on one out of the two issues raised albeit failed in the overall outcome of the appeal.  In essence, the Respondent was wrong in stating that the present case was purely fact sensitive and that no legal issue was involved.  Also, the response given by the Respondent in opposing the Mandamus Application was, to say the least, unhelpful and incorrect.  The Appellant is therefore entitled to the costs incurred in the Mandamus Application, to be taxed, if not agreed. 

13.Given the above, this Court is of the view that the Respondent should only be entitled to half of the costs, excluding the costs incurred in the Mandamus Application, to be taxed, if not agreed. 

14.This is not a case involving complex legal issues.  The facts are relatively straightforward.  The submissions advanced by the Respondent do not involve any difficult questions of law.  This Court fails to see the need for Senior Counsel, certificate for two counsel is refused.

Ms Priscilia Lam, Counsel on fiat, for the Department of Justice, for the Appellant

Mr Peter Duncan, SC leading Mr Ernie Tung, instructed by Robertsons, for the Respondent

[1] Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556，The Attorney General v Leung Chi Kin [1974] HKLR 269

[2] [2010] 2 HKLRD 1038