Tse Mui Chun v. HKSAR

FACC000004A/2003

FACC No. 4 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2003 (CRIMINAL)

(ON APPEAL FROM CACC NO. 557 OF 2001)

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Date of Judgment: 18 February 2004

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JUDGMENT ON COSTS

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Mr Justice Bokhary PJ:

1.This is the Court's judgment on costs.

2.Although we determined both certified points of law in favour of the respondent, we quashed the appellant's convictions. We quashed them because of defects in the affirmations relied upon by the prosecution pursuant to s.121 of the Copyright Ordinance, Cap. 528. As to costs, we made an order nisi leaving the parties to bear their own costs here and in the courts below. The appellant has made a written submission seeking a different order. She asks us to award her costs here and in the courts below. In answer, the respondent has made a written submission asking that the order nisi be made absolute. And the appellant then made a written submission in reply. We have considered, but need not rehearse, the rival written submissions.

3.Both certified points were, as we have said, decided in favour of the respondent. The defects in the affirmations were picked up by the Court itself, not counsel for the appellant. As we said in our judgment of 19 December 2003, those defects, although of sufficient substance to affect the result, were nevertheless technical. The appellant plainly brought the prosecution on herself. It is appropriate in all the circumstances to leave the parties to bear their own costs here and in the courts below. Accordingly the order nisi is made absolute.

Representation:

Mr Andrew Bullett (instructed by Messrs Peter Cheung & Co.) for the appellant

Mr Gerard McCoy SC (instructed by the Department of Justice) and Mr Richard Turnbull and Mr David Leung (both of that department) for the respondent