HKSAR v. Yeung Kin Sun

CACC 400/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 400 OF 2002

(ON APPEAL FROM HCCC NO. 213 of 2001)

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BETWEEN

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Before: Hon Stuart-Moore V-P, Stock JA and Tong J in Court

Date of Hearing: 6 November 2003

Date of Decision: 6 November 2003

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D E C I S I O N

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Hon Stock JA (giving the decision of the Court):

1.This is yet another case which illustrates the affront to the public purse, and, indeed, to common sense, that is represented by the extraordinary provisions of the Costs In Criminal Cases Ordinance, Cap. 492 in so far as they relate to wasted costs.

2.This is an application for leave to appeal against conviction for murder.  The applicant was convicted by a judge and jury in July 2002 of the offence of murder.  Grounds were drawn by the late Mr John Mullick of counsel.  On 20 June this year Mr Oderberg was assigned to represent the applicant and, as we understand it, he received his instructions shortly thereafter.  He tells us that about three weeks ago he formed the view that the grounds drawn by Mr Mullick were not arguable, or were barely arguable, and he takes the view that he cannot in consonance with his professional obligations argue the case.  About that we have no complaint.  But what is not acceptable is that it was not until today that he informed his client of that view, and that it was not until today that he informed this Court; and the result, inevitably, is that we must adjourn so that the applicant, to whom this must have come as a particularly rude surprise, can see if he can secure other representation. 

3.Mr Oderberg has apologized for his tardiness in informing this Court and for the delay in giving advice to his client and, of course, we note that apology.  But quite apart from the fact that the applicant was entitled to be given timely advice, there has been a signal waste of public funds, of the time of this Court in preparing for this appeal, and of the time of the respondent’s counsel in preparing for this appeal.  Had we the power, we would have made a wasted costs order.  In the UK there is legislation which provides for precisely this type of situation.  Yet in Hong Kong the legislation is so emasculated as to be meaningless.  It provides only for wasted costs to be paid by a legal representative where he fails to appear in court or is late.  The worthlessness of this sanction, directed at a situation which is unlikely ever to happen, was alluded to in HKSAR v Danel Ho and others, CACC 269 of 2000 and we have referred to the problem again in later cases.  Why our legislation has thus been denuded of any true force, and represents itself as an exercise in pure cosmetics providing, as we say, for a situation which is unlikely ever to occur, is a matter which can only be known to those privy to the debates and policy decisions at the time; but so far as this Court is concerned, the failure to follow the English legislation, or something along its lines, is a matter at which one can only wonder.  It is certainly not, in our judgment, a piece of legislation which reflects any realistic concern for the public purse.

4.In the event, we have no choice in this case but to adjourn this appeal to a date to be fixed.

Mr Keith J Oderberg assigned by the Legal Aid Department for the Applicant

Mr John Reading, SC, DDPP leading Timothy Tso, GC of the Department of Justice for the Respondent