HKSAR v. Yau Chiu Ming

HCMA300/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 300 OF 2002

(ON APPEAL FROM KCCC 2759 OF 2001)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 15 November 2005

Date of Judgment : 15 November 2005

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J U D G M E N T

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1.The application before me is that of the applicant who was originally convicted of an offence contrary to section 20(c) of the Summary Offences Ordinance, Cap. 228.   An appeal to this court against that conviction was heard on 14 May 2002 and judgment was handed down on 21 May 2002, in respect of which the conviction was set aside and the matter was ordered to be retried before a different magistrate.

2.The reason the conviction was set aside was simply because of a technical fault in the charge.  I will not go into that in any detail.  The nature of the defect in the charge is obvious from the terms of the judgment.  Following that, the applicant was retried and was convicted again.  He appealed again to the Court of First Instance, unsuccessfully, and eventually sought leave to appeal to the Court of Final Appeal and was also unsuccessful in that regard.  As I understand it, no costs were ever ordered against the applicant.

3.He now applies to me for leave to apply for costs out of time in respect of the appeal that came before me on 14 May 2002.  The reasons he advances in respect of that delay were that he has effectively had to research the matter of costs relating to that appeal himself which took some time and that he was given information by his lawyers initially which delayed any application for costs.  The combination of those two reasons results in this application for costs being launched some three years after the original appeal.

4.In my view, the delay in the applicant’s application for leave to seek costs has no good reason capable of explaining it.  Three years’ delay is a very significant delay.  Applying for costs is a straightforward thing and does not require any particular research.  The applicant was represented by many lawyers over the history of the case but at no stage was any application for costs brought before this court. 

5.I might say in addition to that, any substantive grounds for costs being granted to the applicant should this matter have proceeded seem to me to be fairly difficult to argue.  He succeeded on the appeal before me on a very technical basis.  There was no merit in that appeal other than that technical basis upon which he did succeed.

6.For that reason, the application to apply for costs out of time is refused.

Mr Frederick Chung, SGC of the Department of Justice, for HKSAR

Applicant in person, present