The Queen v. Man Wai Keung
Read the full judgment text of CACC 403/1990 on BabelCite. This Court of Appeal judgment.
1. Man Wai Keung - "the claimant"'- was convicted after trial before Kaplan, J. and a jury of murder. The killing took place on 14th December 1988. On 20th December 1991 another Division of this court allowed his appeal against that conviction. The appeal having been brought under the provisions of section 82 of the Criminal Procedure Ordinance, Cap. 221 - "the Ordinance", the court went on to exercise its power under the provisions of section 83E of the Ordinance and ordered the appellant to be
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CACC000403/1990 Headnote S.83XX (3)(a) Cap. 221: Costs where retrial ordered: Hong Kong Bill of Rights Ordinance Cap. 383: inconsistency
-------- Coram: Silke, V.-P., Nazareth, J.A. & Bokhary, J. Date of Hearing: 17th June 1992 Date of Judgment handed down: 7th July 1992 ----------------------- J U D G M E N T ----------------------- Silke, V.-P.: 1. Man Wai Keung - "the claimant"'- was convicted after trial before Kaplan, J. and a jury of murder. The killing took place on 14th December 1988. On 20th December 1991 another Division of this court allowed his appeal against that conviction. The appeal having been brought under the provisions of section 82 of the Criminal Procedure Ordinance, Cap. 221 - "the Ordinance", the court went on to exercise its power under the provisions of section 83E of the Ordinance and ordered the appellant to be retried on a fresh indictment containing a count of murder. 2. That retrial took place before Leonard, J. on 15th March 1992. At it the Crown accepted a plea of guilty to manslaughter by reason of diminished responsibility. The claimant was sentenced to 4 1/2 years imprisonment. This had the effect of his immediate release. 3. Subsequent to the order for retrial, but before that retrial took place, the claimant made an application for costs. While this late application was not in accordance with the practice suggested in R. v. Kwok Moon Yan [1989] 2 HKLR 396 at 402, the Crown takes no point. 4. Section 83XX relates generally to the award of costs by the Court of Appeal and the principles to be applied where there is such an application were set out in Kwok Moon Yan. 5. An appellant making a claim for costs in circumstances such as this is faced with the statutory provisions contained in section 83XX(3) of the Ordinance. That reads:
6. Mr. McCoy who appears for the claimant here - and the claimant has been privately represented, that is as opposed to being granted legal aid, throughout all the proceedings relevant to him - seeks to have this court find that the provisions of section 83XX(3)(a) - which for ease of reference, I shall from hereon call "the provisions of the subsection" - is inconsistent with Articles 1, 10, 11(1), 11(4) and 22 of the Hong Kong Bill of Rights Ordinance, Cap. 383 - "the Bill". This is in the nature of a test case. 7. While we are not directly concerned with the provisions of section 83XX(3)(b) and (c) their existence in the subsection calls for some comment. Where there is an appeal under the provisions of section 831 of the Ordinance - against a verdict of not guilty by reason of insanity - then section 83K(4)(a) which reads:
applies. 8. Appeals brought under the provisions of section 83M are appeals against a finding, under section 75 of the Ordinance, on the issue of a person's fitness to be tried. A person in respect of whom the jury has returned a finding that he is under disability may appeal to the Court of Appeal against that finding. Then section 83N(3), which reads:
applies. 9. There is a certain Herbertian logic in the juxtaposition of the provisions of paragraphs (a), (b) and (c) in section 83XX(3). In each case, although an appeal is successful, consequential orders are made - in the case of a successful appeal against the verdict of insanity, the substitution of a verdict of guilty in respect of the offence charged; where the appellant is successful in having the finding of unfitness to be tried overturned, then a retrial for that particular offence. While "the provisions of the subsection" relate to a retrial after a conviction has been set aside there the similarity ceases. However I do not need, further in these proceedings, to consider the apparent dichotomy. 10. I would say at the outset that Mr. Bruce, who appears for the Crown, made no attempt to suggest that "the provisions of the subsection" are rational. He told us that a sub-committee in-the Attorney General's Chambers has recommended that it be deleted from the Ordinance. He stigmatised its provisions as "dotty". It was, however, his contention that, however irrational the provisions may be, they do not conflict and are therefore not inconsistent with any of the Articles of the Bill. Whatever course the claimant may have open to him in relation to the irrationality of the provisions it does not lie within the confines of the Bill. 11. It is Mr. McCoy's contention that "the provisions of the subsection" are inconsistent with the guarantee of equality and of non-discrimination as set out in Article 22 of the Bill. He bases that argument in part at least on the phrase in the Article "or other status". Article 22 in full reads: " Equality before and equal protection of law 12. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origins, property, birth or other status." 13. They are also, contends Mr. McCoy, inconsistent with the provisions of Article 10 which guarantees equality before courts and tribunals - and on this he places greater reliance. Article 10 reads:
14. Mr. McCoy further contends that they are inconsistent with the rights guaranteed in Article 1, reading this in conjunction with the provisions of Article 10 of the Bill. Article 1 reads:
15. Those particular contentions he seeks to support by submitting that the prohibition against the granting of costs to a successful appellant who was ordered to be retried acts as a deterrent to any person's legitimate exercise of his right of appeal, this because it may have a direct financial impact on the successful appellant's ability to arrange for counsel of his choice at the subsequent retrial. 16. Articles 1 and 22 guarantee the non-discriminatory enjoyment of the rights set out in the Bill. Legislation will be discriminatory within the terms of Article 22 if it requires differential treatment of persons of varying status unless there is an objective or reasonable justification for that difference in treatment. 17. Mr. McCoy referred us to the General Comment of the United Nations Human Rights Committee of 21st November 1989 which relates to the general comments on non-discrimination adopted by the Human Rights Committee at its 948th meeting (37th session) held on 9th November 1989. 18. The Human Rights Committee, having noted that the International Covenant on Civil and Political Rights - "the Covenant" neither defines the term "discrimination" nor indicates what constitutes it, goes on to make reference to a provision in the International Convention on the Elimination of All Forms of Racial Discrimination which states that the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life. In its paragraph 7 the Committee went on to say that:
19. The Committee recognised, however, that the enjoyment or rights and freedoms on an equal footing, does not mean identical treatment in every instance. It concluded, in its paragraph 13, that:
20. Mr. McCoy's reliance on Article 11 of the Bill has particular reference to its sub-articles (1) and (4). They read:
and
21. It is his contention that the legislature by enacting the provisions of the subsection is, in reality, imposing legislative restrictions upon the presumption of innocence. For if, upon a conviction being overturned, the presumption of innocence resurrects itself, as indeed it must, then to treat a successful appellant ordered to be retried in a manner different from a successful appellant the decision in respect of whom is final is, by a side wind in denying him costs, to diminish the presumption. He has referred us to Minelli v. Switzerland (1983) 5 EHRR 554 but, with respect, that decision is a very extreme one relating as it does to a costs order in proceedings which has been discontinued because of the expiry of a limitation period. In the original matter there was a reference that Minelli would "very probably" have been convicted but for the expiry of the limitation. For a court to so find was held to be a violation of the presumption of innocence. But that, with respect, is not the position here. 22. Mr. McCoy seeks for the claimant here only a right of access to the discretion of the court. The award of costs is discretionary and Kwok Moon Yan related solely to the principles to be applied by this court in the exercise of its undoubted discretion. Mr. McCoy informs us that in Australia and New Zealand, where there has been for some considerable time a power to order retrials, there is no prohibition against the award of costs, the award being discretionary. 23. For myself, I would not treat "the provisions of the subsection" as being a legislative finding that a person once convicted is to be treated as guilty until the final termination of all proceedings against him. At any retrial the presumption of innocence would be in full flood. Further, I do not accept the contention, relevant to the provisions of Article 11(4), that the possibility of a retrial would inhibit a person in the exercise o?the rights there conferred upon him. The provisions of the sub-article are, in my view, declaratory of the position at common law and do no more than an enact in legislative form the reality which already existed. There are other matters which could equally well inhibit the fearful appellant from exercising his rights, for example, the power of the court to order loss of time in respect of unmeritorious appeals or the power of the court, when the appeal concerns sentence, to increase that sentence. These matters of themselves do not amount to either inequality before the law or to infringements of rights. These are risks which a person takes when he enters into the appellate procedure and no doubt, before he does so, he will have been properly advised of their existence. The choice remains his. 24. Mr. Bruce submits, as I have already indicated, that the issue before us is one simply of law. It is essentially Mr. Bruce's point, as I understand it, that "the provisions of the subsection" amount to a distinction which is not discriminatory. He predicates the question: Are "the provisions of the subsection" a denial of the right of access to the court's procedure: if so, then they are inconsistent with the Bill: if not, then look elsewhere. He submits that Article be read with Article 1. Articles 10 and the provisions of Article 1(1), have the does not accept Mr. McCoy's extension of other status" to include the class of the successful appellant ordered to be retried. Status, he would have it, does not enter into this matter. The claimant here has equal rights with others to come to court and to have his appeal determined within the four basic equality rights, that is: equality before the law; equality under the law; equal protection of the law; and equal benefit of the law. Having submitted that there is a limited, permissible concept under the Bill of a distinction which does not amount to discrimination, Mr. Bruce referred us to the Law Society of British Columbia v. Andrews (1989) 56 DLR (4th) of the reads, under equal the claimant must 10 of the Bill must 22, if one reads in same effect. He the phrase "or 1. There the court was considering section 15 Canadian Charter of Rights and Freedoms. That the heading "Equality before and under law and protection and benefit of law",
25. It will be immediately apparent that section 15 is in terms different to Articles 1 and 22 of the Bill. But again, this decision really relates to "status". While one reads with interest the leading judgment on the interpretation of section 15 delivered by McIntyre, J. - who dissented on the outcome - the case is not fully applicable to the circumstances we are considering; nor, in the light of the conclusion to which I have come, relevant to my decision in this application. With respect to Madam Justice Bertha Wilson, nor is that which she had to say in Turpin & Another v. R. (1989) 48 CCC 8 which also concerned section 15 of the Canadian Charter. Both - Andrews and Turpin - as adopted in R. v. Swain (1991) 64 CCC (3d) 481 - created what was termed "the enumerated analogous test" or - "the enumerated analogous grounds test". However I do not base myself on any extension to the expression "or other status", or analogy with the items of status as set out in our Articles 1 and 22. 26. I consider the "discrimination" set out in both these Articles, such as race, colour, political opinion et al, to be of general application and not as relating to something as specific as does the issue here. 27. Article l (l) provides the glass through which the rights recognised in succeeding Articles of the Bill, always bearing in mind the preamble to the Covenant, shall be considered. I am fortified in that opinion by the provisions of Article 1(2) as to male and female equality. 28. With respect to Mr. Bruce, and if I have not made specific reference to all of his submissions it is not for any lack of consideration of them, I think he predicates his arguments on too narrow a basis. What we are considering here is the fairness of the appellate procedure within the court's process and whether or not the legislation in question results in discrimination against any person who has recourse to that procedure.
and Article 22 with:
29. Article 10 then goes on to spell out certain basic rights which exist resulting from its declaratory opening. Article 22 enjoins, in its succeeding sentence, the legislature to enact laws which both prohibit discrimination and guarantee equal and effective protection to all persons whatever their race, colour, religion, political opinion et al. 30. I do not accept here that Mr. McCoy's arguments as to the presumption of innocence have the force he would attach to them. That presumption is fundamental to all the criminal process and is enshrined in Article 11(1). I accept that, once an appellant has been successful in the overturning of his conviction, for whatever reason, then the presumption which died with that conviction is revived. However, I do not consider that the legislature, in enacting "the provisions of the subsection" intended to, or in fact did, by some form of side wind violate that presumption by removing the jurisdiction of this court to consider the award of costs where a re-trial has been ordered. It is more probable that it had in mind the fact that there was not, on the face of the matter, finality. Finality is itself recognised in the provisions of Article 11(5) of the Bill. This does not occur until the conclusion of any retrial and any appellate issue which may arise from it. The present inhibition placed upon the courts prohibiting an appellant, who has been directed to be retried, from seeking access to the discretion of the court as to the award of costs does not relate to the presumption of innocence. 31. I am fortified in this conclusion by the practice pertaining in England [cf. section 16(11) Prosecution of Offences Act 1985] that, where a retrial has been ordered - and it must be remembered that the power to so order was a very limited one until recent days - the High Court on the retrial could itself, if it thought proper, make an order for costs relating to all matters which had gone before including the hearing in the Court of Appeal. Were there such statutory provisions contained in section 83XX then the issue which we have for consideration would not have arisen. 32. I would prefer to base my consideration of this issue, and my decision, upon the declaratory first sentence of Article 10. A distinction has been drawn between two classes of appellant, the entirely successful one in the sense that he is not placed in further jeopardy, and the successful one who is. 33. Distinctions can be lawful; discrimination may amount to an unlawful distinction. I use the word "can" and the word "may" in that sentence because, when considering both of those matters within the context of the Bill, one must look to the rationality, the reasonableness and the proportionality of the distinction or discrimination. It is more likely, given the nature of and reason for the existence of the Bill, that a discrimination, as opposed to a distinction, could be held to be inconsistent with it. One must look to the interests of society and to all the circumstances which the legislature had in mind when creating what the courts find to be a distinction amounting to a discrimination. As was said in Sin Yau Ming at p.145 L42-45:
34. Discrimination, in my view, can amount to something which encroaches upon the declarations contained in the opening sentences of both Article 10 and Article 22. It is not confined to the matters set out in Articles 1 and 22 as illustrative of forms of discrimination. Here, it has a broader concept within the equality which is declared to exist between all persons who have recourse to the court's process and relates to the fairness of that process. 35. In my judgment, to deprive a person from access to the court's discretion for no apparent good reason - Mr. Bruce has, by the very nature of his argument, not sought to justify, this deprivation - violates the declaratory opening of Article 10. It is not "a reasonable limit" on equality as can be "demonstrably justified in a free and democratic society", Sin Yau Ming p.142 adopting the words of Dickson, C.J.C. in R. v. Oakes (1986) 26 DLR (4th) 200. Some people are not less equal before the law and less entitled to the protection of the law than others. Whether or not a successful appellant who has been ordered to be retried will get his costs, or any portion of them, of the process which has gone before that decision was made will, of course, lie for the unfettered discretion of this court applying the principles which Kwok Moon Yan attempted to set out. The fact that a retrial has been ordered and the reasons for the making of such an order will be additional factors to be considered in the exercise of that discretion. 36. In the event, I would find that section 83XX(3)(a) violates the provisions of Article 10 of the Bill and, insofar as that be so, is inconsistent with it. As it does not admit of a construction consistent with the Bill it is, under the provisions of section 3(2), to the extent of that inconsistency repealed as from 8th June 1991. Nazareth, J.A.: 37. My Lord having in his judgment explained the facts and counsel's submissions, I am enabled to proceed directly to what I regard as the crucial matters in contention. 38. Section 83XX(3)(a) provides in effect that no appellant who successfully appeals against conviction shall be entitled to costs if he is ordered to be re-tried. 39. That, it is claimed in this appeal, is discriminatory and inconsistent with the Bill of Rights, specifically the right to equality before the courts, enshrined in Article 10 in the following words "All persons shall be equal before the courts and tribunals". If inconsistent with the provisions of the Bill of Rights, s. 83XX(3)(a) would be automatically repealed by s. 3(2) of the Hong Kong Bill of Rights Ordinance (Cap. 383). 40. It was held in R v Sin Yau-ming [1992] 1 HKCLR 127 that in interpreting the Hong Kong Bill of Rights, this Court can be guided by decisions of supra-national tribunals such as the European Court of Human Rights, and that even greater assistance can be derived from decisions of the domestic court:; in jurisdictions, such as the United States of America and Canada, which have constitutionally entrenched Bills of Rights. It was held also, that although the Hong Kong Bill did not contain a "justification" provision similar to s. 1 of the Canadian Charter of Rights (i.e. "The ... Charter ... guarantees the rights and freedoms set cut in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society ... "), such a provision is to be implied. Finally in addressing a challenge to a statutory provision on the ground of inconsistency with the Bill of Rights, the court in Sin Yau-ming applied the rationality test and the proportionality test. 41. Reverting to Article 10 of the Hong Kong Bill, the provision of the Canadian Charter that most closely corresponds to it is s. 15(1):
42. In Law Society of British Columbia v Andrews (1989) 56 DLR (4th) 1, a statutory citizenship requirement for entry into the legal profession was challenged as being in contravention of s. 15(1) of the Canadian Charter. The matter was considered in the Supreme Court of Canada in two stages. First, whether the requirement was a mere distinction or differentiation in treatment or whether it was discriminatory. And second, if it was discriminatory and infringed the right to equality guaranteed in s. 15, whether under s. 1 of the Charter, the requirement was a reasonable limit "demonstrably justified in a fair and democratic society". In the absence in Hong Kong o?an actual provision corresponding to s. 1 of the Charter (which in relation to s. 15 appears to have produced that approach) and in the particular circumstances of this appeal, it does not seem to me to be either necessary or, indeed, of any significant assistance to address the matter in two such separate steps. Nor, given the relative clarity and simplicity of the position before us, is it necessary to resort to analysis of quite the depth and learning in relevant Canadian authorities like R v Oakes (1986) 26 DLR (4th) 200; Law Society of British Columbia v Andrews, and Turpin & Another v R (1989) 48 CCC 8. 43. Whichever of the three approaches canvassed by McIntyre J in Andrews, at pp 21 to 24, is adopted (and like my Lord the Vice-President, I do not find it necessary to resort to any "enumerated analogous test" to exclude from the discretion to award costs, appellants who are ordered to be retried) it is plain that s. 83XX(3)(a) is discriminatory in relation to such appellants. That becomes even clearer in the light of the considerations concerned perhaps more with the rationality and proportionality tests and the implied "justification" provision. 44. In the light of the guidance afforded by the Canadian authorities referred to, one turns then to identify the necessary or desirable social objective of the legislation, only to encounter considerable difficulty in doing so, even if it be related to finality, as one would suppose. Small wonder then that s. 83XX(3)(a) has been characterised as "dotty" by Mr. Bruce, counsel for the Crown. Without even an identifiable objective, a fortiori, a necessary or desirable objective, s. 83XX(3)(a) does not begin to measure up to the rationality and proportionality tests, and to attract the requisite justification of the kind mentioned. On the contrary the obvious inequality, discrimination, and even injustice that it manifestly inflicts is unnecessary and, so far as can be seen, serves no desirable purpose. For the foregoing reasons, and for all the other reasons given by my Lord the Vice-President, I also find that paragraph (a) of s. 83XX(3) infringes Article 10 of the Bill, and does not admit of a construction consistent with the Hong Kong Bill of Rights Ordinance. It therefore stands repealed to the extent of the inconsistency. It follows that the appellant is not barred by s. 83XX(3)(a) from applying for costs. Bokhary, J.: 45. This case concerns the costs of persons whose appeals against conviction are allowed by this Court. 46. If not for subsection (3)(a) of section 83XX of the Criminal Procedure Ordinance, Cap.221, all such persons would be entitled to ask this Court to exercise its discretion to order that their costs be paid out of public funds. For, in the absence of that subsection, that would be the position brought about by subsection (2) of the same section : all appellants whose appeals against conviction are allowed could ask for costs out of public funds; and the Court could say "yes" or it could say "no", depending on what is just in all the circumstances. 47. But what subsection (3)(a) does is in effect this. It divides such persons into those who are ordered to be retried and those: who are not. And, while leaving the latter free to seek costs out of public funds, it precludes the former from doing so. 48. The question for our decision is whether subsection (3)(a) is consistent with the Bill of Rights. For if it is not, then it will have been repealed by the Bill. 49. Article 10 of the Bill of Rights entrenches two fundamental rights, namely, the right to equality before the courts and the right to a fair and public hearing. 50. As to the first of those two rights, the article states that :- "All persons shall be equal before the courts and tribunals." 51. The statement is a bare one. But it is not, in the circumstances, necessarily any the worse for that. And, in any event, we are by no means in uncharted waters. First of all, the concept of equality before the courts is no stranger to the Common Law. Secondly, turning to Equity, the equitable maxim that "equality is equity" underlines that the requirement of fairness is the reason for the insistence on equality. Thirdly, we are now concerned with equality before the courts as an entrenched fundamental human right, so that no departure from its strict terms is valid unless such departure is necessary, proportionate to such need and rational. And finally, at no time does commonsense go out the window when these things are judged. 52. Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown : one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need. 53. Having said that, I turn now to the concept of being "before" the courts. Being before a court involves being amenable to its jurisdiction and having access to that jurisdiction. And a court's jurisdiction comprises of what it can do to you and what it can do for you. 54. So, if what a court can do to you is more than what it can do to others or if what it can do for you is less than what' it can do for others, then, unless the difference can be justified in the way which I have explained, you are not equal before that court. 55. Such inequality is inconsistent with article 10 of the Bill of Rights. Any pre-existing legislation creating such inequality will have been repealed by the Bill by reason of such inconsistency. And, by virtue of the Hong Kong Letters Patent 1917 to 1991 (Nos 1 and 2), future legislation creating such inequality is prohibited. 56. Turning from the general, I revert to the particular. As I. have already pointed out, subsection (3)(a) of section 83XX of the Criminal Procedure Ordinance precludes appellants whose convictions are quashed but who are ordered to be retried from doing what other appellants whose convictions are quashed are entitled to do, namely, seek costs out of public funds. 57. Now, it is true that where no retrial is ordered there is an element of finality which is absent where a retrial is ordered. And the absence of such finality may - as Mr McCoy for the present appellant accepts - sensibly and fairly be viewed as a factor to be taken into account in deciding whether or not to award an appellant costs out of public funds. But there may be any number of cases in which it would be appropriate to make such an award even after that factor has been taken into account. 58. There is no need to take away the power to make such awards whenever a retrial has been ordered. Such powers are discretionary in nature. And where the particular circumstances of the case are such that the absence of finality gives rise to an adequate basis for witholding such an award, the Court would always have a discretion to withold it for that reason. 59. There being simply no need for the departure created by the subsection, one cannot begin to justify it. So the question of such departure being rational and proportionate does not even arise. That saves me from having to find appropriate language by which to express my acceptance of the substance of the concession which Mr Bruce for the Crown was constrained to make, in the course of the argument, that the subsection was, in the word which he chose, "dotty". 60. In my judgment, subsection (3)(a) of section 83XX of the Criminal Procedure is inconsistent with article 10 of the Bill of Rights. So it is Bill inconsistent and repealed. All appellants whose appeals against conviction have been allowed, including those who have been ordered to be retried, are entitled to ask this Court to exercise its discretion to order that their costs be paid out of. public funds. And the Court will say "yes" if it is just to so order and "no" if it is not. 61. That is the general result of our decision. Its immediate result is, as my lord has indicated, that the appellant in the present case, whose appeal against conviction was allowed, may - on a date to be fixed - seek an order that his costs be paid out of public funds, even though he was ordered to be retried. And whether he gets such an order as to costs will depend of course on whether it is just that he should get one in all the circumstances as they appear after argument. Silke, V.-P.: 62. We shall, for administrative reasons, hand down this judgment. Mr. McCoy can, should he so see fit, make the costs application which he is now entitled to make on a date to be fixed.
Representation: G.J.X. McCoy, Esq (So & Co.) for Applicant A. A. Bruce, Esq. for Crown/Respondent |
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