HKSAR v. Lee Ming Tee and Another

FACC000008A/2000

FACC No. 8 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCCC NO. 191 OF 1999)

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Date of Judgment: 3 May 2001

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JUDGMENT ON COSTS

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Chief Justice Li:

1. On 22 March 2001, the Court handed down judgment allowing the appeal and remitting the charges against the respondents to the Court of First Instance for trial. It also made an order nisi that the respondents pay the appellant's costs in the Court of Final Appeal, giving the parties leave to file written submissions regarding that order. Such submissions were filed.

2. After considering those submissions, the Court unanimously makes the order nisi absolute for the reasons given in the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

3. The 1st respondent invites the Court to make no order as to the costs of the appeal. Two arguments, which the 2nd respondent adopts, are advanced in support.

4. The first is based on sections 72 and 73A of the Criminal Procedure Ordinance, Cap 221 which materially provide as follows :-

"s72(1) It shall be lawful for the court, on the conviction of any person for an indictable offence, in addition to such sentence as may otherwise by law be passed, to condemn such person to the payment of the whole or any part of the costs or expenses incurred in and about the prosecution and conviction for the offence of which he is convicted."

"s73A(1) Where after trial in the court a person is acquitted, the court may order the payment out of the public revenue of the costs of the defence, including the costs of any proceedings before a magistrate."

It is common ground that those sections govern the costs position in relation to the respondents in the Court of First Instance. They do not concern the Court of Final Appeal's power to award costs pursuant to section 43 of its statute which states:

"Costs, including costs in the courts below or before a magistrate, shall be paid by such party or person as the Court shall order ......"

Section 43 obviously confers a very broad discretion.

5. The respondents invite the Court to exercise that discretion by adopting the statutory policy applicable in the Court of First Instance. As they point out, section 72 only empowers the Court of First Instance to make costs orders on a defendant's conviction, in addition to the passing of some other sentence. It follows, so it is argued, that the Court of First Instance has no power to order costs against a defendant on a failed application for a permanent stay. This appears to be correct, at any rate, unless and until the defendant should be convicted and sentenced. It is suggested that "the proceedings before the Court of Final Appeal may be viewed as interlocutory," since the case has now been remitted for trial at first instance. On that footing, in line with sections 72 and 73A, the Court should not make any order as to costs.

6. In our view, the argument is unfounded and sections 72 and 73A are a red herring. The costs order nisi made in the appeal relates solely to the appellant's costs incurred in the Court of Final Appeal. No costs order was in fact made in respect of the 12 day application before Pang J in the Court of First Instance. Those sections do not apply to, and shed no light on, the question whether the costs in this Court should be borne by the respondents. That question involves an exercise of discretion taking into account the relevant circumstances of the appeal.

7. The respondents' second argument addresses such an exercise of discretion. It draws attention to the fact that the Court held certain criticisms of official conduct made by the Judge to have been justified. On this basis, they submit :-

"...... that viewed overall, there was a legitimate, arguable basis for raising the issue of stay with Pang J, in consequence of which, consonant with the approach of the lower courts in their approach to the award of costs against defendants, the [respondents] ought not to be penalised in costs."

We are unpersuaded by this argument. In the first place, it should be stressed that nothing in this ruling is intended to affect or to preclude possible consideration by the trial judge of what, if any, order should be made in relation to the costs of the stay application before Pang J in the light of the eventual outcome of the proceedings. So far as the appeal heard by this Court is concerned, it has been held that the deprecated conduct fell very far short of the kind of abuse of process that might justify a permanent stay on the ex parte Bennett basis. While the Inspector's report should not have been published before the trial was over, the Court decided that the central question of whether a fair trial was still possible had not been approached in conformity with principle and that in the circumstances, there was every reason to believe that the answer was in the affirmative.

8. The respondents' case was generally rejected on appeal. Moreover, at the hearing, significant points that had been advanced before the Judge and formed important elements of his decision were not pursued. For example, the Judge focussed on the allegation that the Inspector had improperly handed materials directly to the police and made this the basis for his finding of an abuse of power, but such finding was not supported on appeal. Article 11(2)(g) of the Bill of Rights was relied on before the Judge who found that it had been blatantly violated, a conclusion forming another important ground for his grant of a stay. In this Court, that conclusion was not supported. These points may well have made a vital difference to the outcome below.

9. In the circumstances, it is our view that the Court's discretion is correctly exercised by requiring the respondents to bear the costs of the appeal as provided in the costs order nisi.

10. Finally, a suggestion made by the 2nd respondent should be mentioned. He submits that the Court should defer making a final decision as to the costs of the appeal until after conclusion of the trial. This is premised on the assumption that if the respondents are acquitted :-

"it is unlikely that they will be ordered to bear the prosecution's costs relating to the unsuccessful application for a permanent stay."

That assumption is unjustified in relation to the costs of the appeal in this Court. By seeking a permanent stay, the respondents took the proceedings on a long and costly detour. The trial has now been placed back on track by the result of the appeal. It is appropriate that they should bear the costs of the Court of Final Appeal segment of that detour, whatever the outcome of the trial. No purpose would be served by the Court deferring its decision which, in our judgment, should be that the costs order be made absolute.

Representation:

Mr Michael Thomas QC, Mr Ian S Lloyd and Mr Roger Beresford (instructed by the Department of Justice), Mr G D Goodman and Mr Kelvin Ka-yun Lee (of that department) for the appellant

Mr Jonathan Caplan QC, Mr Michael Lunn SC and Mr Alexander King (instructed by Messrs Haldanes) for the 1st respondent

Mr Gary Plowman SC and Mr Keith Yeung (instructed by Messrs Robertsons) for the 2nd respondent