HKSAR v. Khaw Kim Sun (許金山)

FACC No. 8 of 2023

[2024] HKCFA 10

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2023 (CRIMINAL)

(ON APPEAL FROM CACC NO. 309 OF 2018)

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J U D G M E N T   O N   C O S T S

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The Court:

1.On 21 November 2023, the Court handed down its judgment allowing the appellant’s appeal, quashing his convictions for the murder of his wife and daughter and ordering that he be re-tried on the charges of murder.

2.The appellant has filed submissions on costs, seeking orders for the costs of:

(1)  The trial in HCCC 374/2017 with a certificate for two counsel;

(2)  The intermediate appeal in CACC 309/2018 with a certificate for two counsel;

(3)  The application for leave to appeal to this Court in FAMC 24/2022; and

(4)  The substantive appeal to this Court in FACC 8/2023, including the costs of the submissions on costs.

3.In its submissions in response, the respondent accepts that costs should be granted to the appellant for the costs of his application for leave to appeal before the Appeal Committee in FAMC 24/2022 and the substantive appeal to this Court in FACC 8/2023, but otherwise opposes the appellant’s application for costs. The respondent opposes the grant of a certificate for three counsel in this Court but that is not sought.

4.Although the appellant does not appear to ask for them, the respondent also opposes the award of costs to the appellant for his unsuccessful application to the Court of Appeal for a certificate that a point of law of great and general importance was involved in the appeal. The appellant’s reply submissions do not suggest that these are sought and so it is unnecessary to consider these any further.

5.The two areas where costs remain in issue are therefore (1) the costs of the trial, and (2) the costs of the intermediate appeal.

6.As to the costs of the trial, it is the respondent’s contention that the appellant’s conduct in relation to his procurement and handling of the carbon monoxide and the yoga ball involved in the death of his wife and daughter, as well as his conduct during the police investigation, brought suspicion on himself and so the appellant should not be awarded the costs of the trial.

7.As to the costs of the intermediate appeal, it is the respondent’s contention that the appellant put forward multiple grounds of appeal in respect of which leave to appeal was refused, which attracted criticism from the Court of Appeal both in relation to their form and contents. It is submitted that, viewed in the round, the appellant effectively failed on all fronts in the Court of Appeal and that, leaving aside the ground in relation to the judge’s directions on the missing stopper, which ultimately succeeded in this Court, this was not a case where the appellant’s central arguments which succeeded before this Court were advanced but erroneously rejected in the Court of Appeal.

8.We decline to award the appellant his costs of trial or of the intermediate appeal to the Court of Appeal. In relation to the costs of trial, we agree with the respondent’s contention that the appellant brought suspicion on himself and that this is a proper basis to decline to make an order of costs in his favour.[1] Regardless of the outcome of the re-trial, the appellant cannot reasonably be surprised that he was prosecuted in the original trial given his behaviour in the course of the investigation of his wife and daughter’s deaths. In relation to the costs before the Court of Appeal, we likewise decline to make an order of costs in favour of the appellant. Although the missing stopper ground was one of the multiple grounds of appeal advanced by the appellant and ultimately succeeded, it was a relatively minor part of the appeal. By far the greater part of the appeal, and therefore by far the larger part of any costs incurred, was taken up with the pursuit of points that were rightly held by the Court of Appeal not to be reasonably arguable and to have been advanced unreasonably.[2]

9.On the costs application, we therefore order that the respondent pay the appellant’s costs limited to the application for leave to appeal before the Appeal Committee in FAMC 24/2022 and the substantive appeal to this Court in FACC 8/2023. A certificate for more than two counsel is not sought for those costs and so it is unnecessary to make any direction in this regard.[3]  Since the outcome of the costs application is that both parties have been partially successful, we make no order as to the costs of the submissions on costs.

Written submissions by Mr Andrew Bullett, instructed by CL & Co Solicitors, for the Appellant

Written submissions by Mr Ira Lui, ADPP, of the Department of Justice, for the Respondent