HKSAR v. Chan Ki Fung

HCCC 196/2021

[2024] HKCFI 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2021

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BETWEEN

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R U L I N G

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1.On 4 January 2024 the defendant applied for bail. That application was due to be heard on 16 January. However, before it could be heard, the application was withdrawn. That was on 12 January. That was not surprising. The defendant had been refused bail many times before, and it was not suggested that there had been a material change of circumstances since the previous occasion on which an application for bail had been refused. However, by the time that the application was withdrawn, counsel for the prosecution had already begun to draft her written submissions opposing the application, and when the application was withdrawn, she asked for the date fixed for the hearing of the application not to be vacated, so that she could apply for the costs thrown away. I reluctantly agreed to that – reluctantly because I thought that the application for costs could be dealt with on written submissions without a hearing.

2.On the hearing of the application for costs, I ruled that it was difficult to see how the costs incurred by the prosecution in resisting the latest application for bail had not been unnecessarily incurred. My discretion to order the defendant to pay to the prosecution all or part of the costs had therefore been triggered. However, I had to take into account the defendant’s means. Any award of costs had to be within his financial capacity to pay. He had been in custody awaiting trial for over three years, and was said to have no savings to speak of. Moreover, his ability to pay in the future would depend on whether he was convicted and sent to prison for a long time or acquitted and therefore released. I therefore adjourned the application for costs until after his trial. However, I added that whatever order I ultimately made, it would not include the prosecution’s costs of the hearing on 16 January. I said that to reflect my view that a hearing had not been necessary.

3.The defendant has now been acquitted. I have been informed that the prosecution’s costs of preparing the written submissions for resisting the defendant’s application for bail amounted to $3,280.00, and that the defendant does not dispute that figure. Now that the defendant has regained his liberty, he has an earning capacity once again, though it will inevitably take some time for him to get back on his feet. I have concluded that he will be able to afford to pay the sum for which the prosecution ask, but I propose to give him a reasonable time in which to pay it. Accordingly, I order the defendant to pay the prosecution the sum of $3,280.00 within 6 months of today, namely by 1 September 2024.

Ms. Lisa Remedios, counsel-on-fiat, for HKSAR

Mr. Felix Tam and Mr. Leon Chan, instructed by M/s M.C.A. Lai Solicitors LLP, for the 1^st defendant