Read the full judgment text of on BabelCite. was delivered on 27 June 1989 before Silke, V.-P., Power & Penlington, JJ.A..
Criminal law – costs – Court of Appeal – award of costs out of public revenue to successful appellants – jurisdiction under section 83XX of the Criminal Procedure Code (Cap 221) – unfettered discretion – English practice under section 9(3) of the Criminal Procedure Ordinance – 'positive reasons' for not making a costs order – bringing suspicion on oneself or misleading the prosecution – quashing on a meritless technicality – declining to order a retrial not in itself a positive reason – separate consideration of costs in each court – Practice Direction (Costs Successful Defendants) [1973] 1 WLR 718 and Practice Direction (Costs: Acquittal of Defendant) [1981] 1 WLR 1383 – R. v. Agritraders Ltd. [1983] 1 QB 464 – R. v. Arron [1973] 1 WLR 1238 – Au Pui Kuen v. R. [1979] HKLR 16 – The Queen v. Lee Tsat Pin Cr. App. 315/85 (unreported) – two consolidated applications for costs: (1) Kwok Moon Yan (CACC 347/1988), a van driver convicted of three burglaries whose conviction was quashed on insufficiency of evidence, there being only grave suspicion but no positive evidence of his knowing participation; and (2) Lok Man Chiu (CACC 500/1988), convicted of living on earnings of prostitution and managing a vice-establishment, whose conviction was quashed because the trial judge's reliance on the credibility of police constable PW7 was undermined by internal evidence suggesting another constable had copied out PW7's statement – court holds that s.83XX confers an unfettered discretion to award costs but the normal practice is to award costs unless there are positive reasons not to – 'positive reasons' include (i) the appellant's own conduct bringing suspicion on himself or misleading the prosecution into thinking the case is stronger than it is, and (ii) quashing on a meritless technicality – the court rejects the submission that declining to order a retrial is itself a positive reason, holding it would at most affect costs of earlier proceedings – costs in each court must be considered separately – s.83XX generally requires quashing of all convictions but partial awards may be appropriate in some circumstances – applications for costs should be made when judgment is pronounced – both applicants awarded costs of the appeal and ancillary days, with sums to be ascertained by the Registrar.
Legal issues: Source and scope of the Court's discretion to award costs out of public revenue under s.83XX of the Criminal Procedure Code · What constitutes 'positive reasons' for not awarding costs to a successful appellant · Whether declining to order a retrial is a 'positive reason' for denying costs · Whether costs in different courts should be considered separately · Whether s.83XX requires all convictions to be quashed
Outcome: Costs awarded to both applicants. Registrar directed to ascertain the sums