Attorney General v. Leung Ka Ki
Read the full judgment text of HCMA 502/1996 on BabelCite. This High Court CFI judgment was delivered on 13 November 1996.
1. On 29th November 1995 the respondent, a 17 year old young woman, was charged in the Fanling Magistrates' Court with being in possession of a dangerous drug. She pleaded not guilty and the prosecution offered no evidence against her. The magistrate Mr Thomas dismissed the charge.
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Magistracy Appeal No. 502 of 1996 ----------------------- H E A D N O T E ----------------------- Leung was acquitted at the Magistrates' Court and defended by the Duty Lawyer. An application was made for costs in the sum incurred - $3,900, by the Duty Lawyer Service. Leung was liable to pay $300 as a handling charge. The magistrate awarded $3,900. The Crown appealed by Case Stated. Held : Section 69 of the Magistrates' Ordinance only empowered an award in the amount for which a defendant was personally liable - here it was only the handling charge of $300. IN THE SUPREME COURT OF HONG KONG (Appellant Jurisdiction) MAGISTRACY APPEAL NO.502 OF 1996 -------------
-------------- Coram : Hon Sears, J. in Court Dates of hearing : 2 July 1996 and 1 November 1996 Date of judgment : 13 November 1996 ------------------------ J U D G M E N T ------------------------ 1. On 29th November 1995 the respondent, a 17 year old young woman, was charged in the Fanling Magistrates' Court with being in possession of a dangerous drug. She pleaded not guilty and the prosecution offered no evidence against her. The magistrate Mr Thomas dismissed the charge. 2. Counsel appearing for her made an application for costs and the magistrate ordered the sum of $3,900 to be paid to the respondent within 28 days, but it was to be payable care of an address of the Duty Lawyer Service at Fanling. The prosecution, being dissatisfied with the determination on the amount of costs, have appealed by way of case stated. 3. The power to award costs in the Magistrates' Court is currently governed by s.69 of the Magistrates Ordinance, Cap.227 :
4. The issue in this appeal is whether a magistrate has jurisdiction to award an amount of costs which reflect the services carried out by the Duty Lawyer Service. It is therefore necessary to examine this Service. 5. Miss Grace Wong is the Administrator of the Duty Lawyer Service and she has sworn two affidavits detailing its work. It is a company limited by guarantee and incorporated on 17th August 1993. It is not a Government department, but a wholly subvented organization. It is jointly managed and administered by the Bar Association and the Law Society of Hong Kong, which have four members each on the council, together with not more than three lay persons who may be invited to sit on the council. Miss Wong in her affidavits describes the scheme which the Service operates. In para.3 she says :
6. The method by which the Duty Lawyer Service obtains a higher figure than the $300 is explained in paragraph 5 :
7. What happened in this particular case was that after the costs were awarded by the magistrate, the Duty Lawyer Service wrote to the Customs & Excise Department requesting the officer in charge to arrange to send the amount of the awarded costs to the Service and enclosed an authorization form signed by the respondent, and upon receipt of those costs, the cheque was deposited into their current account. 8. This Service is very valuable in the administration of justice in Hong Kong. It provides skillful and able advocates to assist defendants in the Magistrates' Courts. For the financial year ending 31st March 1996, there was a deficit of over $920,000 and the Service will have to apply to the Government through the Director of Administration for additional subvention. The revenue obtained by the awards of costs in the Magistrates' Courts over and above the $300 paid by each defendant is relatively small. In 1995, for example, it was $28,850. Nevertheless, the Service considers these awards of importance, particularly as it runs the Service at a deficit. Mr Wong submits, however, that these awards of costs incur the magistrates in having to examine the applications and assess the amounts to be paid, instead of making a straightforward award of $300 which is what a particular defendant would have paid. 9. The words used in s.69 appear to give a wide discretion to the magistrate. The words are "as he may think fit". Nevertheless, in my judgment, this discretion must be exercised in accordance with normal judicial principles. In the English Acts dealing with costs, the word "incurred" is frequently used, which is absent from s.69. The Common Law position as to costs generally was explained in 1860 in England by Bramwell B. in Harold v. Smith 5 H & N 381 :
10. This principle was reaffirmed in Gundry v. Sainsbury [1910] 1 KB 645 where a solicitor who was acting for a client had agreed with him that he should not pay the solicitor any costs. It was held that its client was not entitled to recover from the defendant more costs than were payable by him to his solicitor under the agreement. 11. The general principle which emerges from these and other authorities and the Common Law position is that when a judge exercises his discretion to make an award of costs in favour of somebody, whether in civil or criminal proceedings, the amount of costs is not a punishment of the other party, but is a means of compensating the particular person for his liability in respect of his costs. In the cases where the Duty Lawyer Service operates, the only liability for the defendant is the handling charge of $300. Although the Service incurs costs on behalf of the defendant, in my judgment, by virtue of the method by which the Service is provided to a particular defendant, there never is any liability on the defendant to pay more than the $300. The defendant signs an undertaking to pay over any costs awarded to him greater than $300 and authorizes the payment of that sum to the Duty Lawyer Service. This, however, is an artificial method to suggest that there is a liability on the defendant for more than $300. 12. In my judgment, although I recognise the ingenuity of those who devised this scheme of obtaining a sum more than $300, there has never been any liability on the defendant and he has never incurred any liability greater than the handling charge. When, therefore, I must construe s.69, it is on the basis that the order for costs that the complainant or informant shall pay to the defendant is that amount of costs for which the defendant is personally liable. Consequently the award made by this magistrate was wrong in law. The questions of law in the case stated are as follows :
13. The answer to the first question is "Yes". The parties accept that there is jurisdiction to make such an award of costs. The answer to the second question is "No". The only award that a magistrate can make is the amount of costs to which the defendant is liable, in this case, $300. 14. I have also been asked to express my opinion on the issue of costs in Criminal Cases Bill which shortly should become the law. By Clause 3, the power to award costs where, for example, there is a dismissal of the information or complaint, the words used are "the magistrate may order that costs be awarded to the defendant". However, under Part IV headed "General principles", Clause 15 reads :
15. There the words are "expenses properly incurred by him". These words, in my judgment, make clear what the Common Law position has always been and I am in no doubt that when this Bill comes into effect, the restricted power to award costs only for a defendant's personal liability will continue.
Representation: Mr Wesley Wong, S.C.C. of the Attorney General, for Appellant Mr Lawrence Lok, Q.C. and Miss Liza Jane Cruden, inst'd by M/s Lo Wong & Tsui, for Respondent |
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