HKSAR v. Cheung Siu Ki

Headnote

[Where the District Court ordered a defendant's costs to be paid out of the public revenue (pursuant to section 73A of the Criminal Procedure Ordinance (Cap. 221) before its subsequent repeal), the costs could only have been taxed by the District Court. The Court of First Instance had no jurisdiction to tax the costs under Ord. 62 of the Rules of the High Court. To the extent that the costs were taxed by a deputy registrar of the High Court, he was exercising the power conferred on him by section 14(4) of the District Court Ordinance (Cap. 336), but (a) he had no power to review the amount of costs taxed by him, and (b) a judge did not have power to review the taxation either.]

District Court Case No. 846 of 1995

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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Coram: The Hon. Mr. Justice Keith in Chambers

Date of hearing: 7 July 1997

Date of handing down of judgment: 7 August 1997

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J U D G M E N T

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INTRODUCTION

1. Cheung Siu Ki was charged with a number of criminal offences. He was tried in the District Court by a District Court Judge. He was represented by leading and junior counsel. He was found to have no case to answer in respect of some of the charges. At the end of the trial, he was acquitted on the remaining charges. Pursuant to section 73A of the Criminal Procedure Ordinance (Cap. 221) ("the CPO") (which was then, but is no longer, in force), the District Court Judge ordered that the Defendant's costs be paid out of the public revenue.

2. The Defendant's bill of costs was eventually taxed in the High Court. The fees paid to junior counsel were disallowed. The Defendant's application for a review of the taxation in respect of those fees was dismissed by the taxing master. The Defendant now seeks a review of the taxation under Ord. 62 r. 35, contending that the fees paid to junior counsel should be allowed. For the avoidance of doubt, I have, as required by the Hong Kong Reunification Ordinance (No. 110 of 1997), referred in this judgment to the High Court and the Court of First Instance respectively in place of the Supreme Court and the High Court.

JURISDICTION

3. The power of the High Court to review this taxation under Ord. 62 r. 35 only arises if Ord. 62 is properly engaged. Apart from certain judicial clerks, the only officers with power to tax costs under Ord. 62 are taxing masters. If the taxing master had the power to tax the costs in this case, the only source of his power under Ord. 62 was Ord. 62 r. 12(1)(c), which gave him power to tax "any ..... costs the taxation of which is directed by an order of the Court". Ord. 62 r. 1(1) defines "the Court" when used elsewhere in Ord. 62 as "the High Court ..." Since the costs in this case were ordered by the District Court, the power of the High Court to tax the costs under Ord. 62 was not engaged.

4. However, that does not mean that the initial taxation of the Defendant's bill of costs was a nullity. Section 73A(3) of the CPO provided that the amount of costs must be ascertained by "the Registrar". Section 2 of the CPO defines "Registrar" as "the Registrar of the court". Since the Defendant's trial took place in the District Court, it was the Registrar of the District Court who had to ascertain the amount of the costs. However, section 14(4) of the District Court Ordinance (Cap. 336) ("the DCO") enables a deputy registrar of the High Court to exercise any powers of the Registrar of the District Court. Since the taxing master was a deputy registrar of the High Court, he had the power to conduct the initial taxation of the Defendant's bill of costs - not by reason of Ord. 62, but because of the combined effect of section 73A(3) of the CPO and section 14(4) of the DCO. What he did not have any power to do was subsequently to review his taxation. That is because the Registrar of the District Court does not have any power to review the amount of any costs ascertained by him under section 73A(3). To the extent that the taxing master purported to review his taxation pursuant to Ord. 62 r. 34, he had no power to do so because Ord. 62 was not engaged. It follows that a judge does not have any power to review the taxation pursuant to Ord. 62 r. 35 for the same reason.

5. Mr. Anderson Chow for the Defendant contended that the definition of "Registrar" in section 2 of the CPO - "the Registrar of the court" - did not mean the Registrar of the court in which the defendant has been tried, but the Registrar of the High Court. That was because "court" is defined in section 2 of the CPO as "the Court of First Instance acting in the exercise of its criminal jurisdiction". I reject that argument. The definitions in section 2 of the CPO apply "unless the context otherwise requires". I have no doubt that the context requires the word "court" in the phrase "the Registrar of the court" to be given a different definition from that contended for by Mr. Chow, for the simple reason that there is no such officer as the Registrar of the Court of First Instance. What there is is a Registrar of the High Court. The fact that the High Court consists of the Court of Appeal and the Court of First Instance does not mean that the Registrar of the High Court is also the Registrar of the Court of First Instance. In any event, section 73A itself contemplated the ascertainment of the amount of costs ordered under it to be made by the court in which the trial took place, because section 73A(4) provided that in section 73A "court" means the Court of First Instance and the District Court. That can only have been done to ensure that the taxation took place in the court in which the trial took place.

CONCLUSION

6. For these reasons, I have come to the conclusion that I have no jurisdiction to review the taxation, and that the application must be dismissed. However, since neither Ord. 62 r. 12(1) nor section 73A(4) of the CPO, nor the rider "unless the context otherwise requires" to section 2 of the CPO had been referred to in the course of argument, a draft of this judgment was sent to the parties to enable them to make further representations to me in writing, limited to the question of jurisdiction. This judgment has been completed with the benefit of those representations. At present, I see no reason why costs should not follow the event, and I therefore make an order nisi that the Defendant should pay the prosecution's costs of this summons.

Representation:

Mr. David Leung, of the Department of Justice, for the Hong Kong Special Administrative Region

Mr. Anderson Chow, instructed by Messrs. K.C. Ho & Fong, for the Defendant