HKSAR v. Chen Keen (Alias Jack Chen) (陳克恩)

FAMC Nos. 31 and 32 of 2022

[2023] HKCFA 2

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 31 and 32 OF 2022 (CRIMINAL)

(ON APPLICATIONS FOR LEAVE TO APPEAL

FROM CACC NO. 185 OF 2021)

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DETERMINATION

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Mr Justice Fok PJ:

1.We are satisfied that the two questions of law set out in the applicants’ Applications for Leave to Appeal are involved in the decision from which leave to appeal is sought and that they are of the requisite importance and reasonably arguable. We therefore grant leave to appeal in respect of those questions, namely:

“Question 1

What on the true construction of section 4 of the Costs in Criminal Cases Ordinance (Cap.492), is the meaning of ‘where a defendant is not tried for an offence for which he has been indicted or committed for trial’?

Question 2

Whether the power to award costs under the said section 4 covers a situation where a defendant’s trial is aborted by reason of the discharge of the jury?”

2.Further, we grant leave to appeal against the judgment of the Court of Appeal on the ground that it is reasonably arguable that, in finding that the judge had no jurisdiction to grant defence costs to a defendant under section 4 of the Costs in Criminal Cases Ordinance (Cap.492), substantial and grave injustice has been done to the applicants.

3.The appeal will be listed for hearing on 8 May 2023.

Mr Tim Owen KC and Mr Benson Tsoi, instructed by Boase, Cohen & Collins, for the 1^st Defendant/Applicant in FAMC 31/2022

Mr Ian Winter KC and Ms Betty Chiu, instructed by Haldanes, for the 2^nd Defendant/Applicant in FAMC 32/2022

Ms Vinci Lam SC, DDPP and Ms Joycelyn Ng, SPP, of the Department of Justice, for the Respondent