Tong Cun Lin v. HKSAR

FAMC000027/1998

FAMC No. 27 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCCC No. 303 OF 1996)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 26 February 1999

Date of Determination: 26 February 1999

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. This is an application for leave to appeal to the Court of Final Appeal against a trial judge's refusal to award an acquitted defendant his costs.

2. The applicant admits and indeed avers that no avenue to the Court of Appeal is open to him. But he contends that there is open to him one directly to the Court of Final Appeal. In so contending he points to s.31 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which reads:

" An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from -

(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal."

He contends that Keith J's decision refusing him his costs, following his acquittal by the jury, is a decision within item (b) of s.31.

3. In our view, this contention is at least reasonably arguable. Whether it is ultimately correct, is for the Court of Final Appeal to say. The respondent accepts that this is for the Court itself to say.

4. We turn, therefore, to the question whether it at least reasonably arguable that Keith J's decision refusing the applicant his costs constituted a substantial and grave injustice.

5. It is neither necessary nor even desirable to rehearse the rival submissions on this question. Suffice it to say that we consider the applicant's case on this question to be at least reasonably arguable.

6. In all the circumstances, we grant the applicant leave to appeal to the Court of Final Appeal against the decision refusing him his costs.

Representation:

Mr Vivian Robinson QC and Mr Keith Yeung (instructed by Messrs So, Keung, Yip & Sin) for the applicant

Mr A E Schapel and Ms Louisa Lai (of the Department of Justice) for the respondent