Cheng Chun Wai v. HKSAR

FAMC No. 2 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA No. 63 of 2005)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 27 February 2006

Date of Determination: 27 February 2006

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

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Mr Justice Ribeiro PJ:

1.The applicant was convicted after trial before the magistrate of two charges of misconduct in public office and sentenced to a total of 18 months’ imprisonment.

2.The applicant was a Divisional Officer in the Fire Services Department and the charges related to his having given a Mr Li Yu-kun dishonest assistance in a written examination and an interview taken by Mr Li with a view to obtaining statutory registration as a Fire Services Installation Contractor.  The magistrate found the relevant conduct proved beyond reasonable doubt.

3.On appeal, Deputy High Court Judge D Pang quashed the conviction and ordered a re-trial.  He found that the magistrate had erred in approaching the case as one involving a joint enterprise for evidential purposes.  He also found that the magistrate had failed to give sufficient reasons for coming to various conclusions.

4.The applicant was awarded the costs of his successful appeal but not of the trial before the magistrate.

5.The present application is for leave to appeal to the Court of Final Appeal against the Judge’s orders for a re-trial and refusing the applicant the costs of the trial.

6.These are issues which give rise to no questions of principle, let alone issues of great general or public importance.  Mr Hui valiantly sought to argue that in principle an order for a re-trial should automatically lead to an order for costs in favour of the defendant.  However, this runs counter to the established principle that the question is within the intermediate court’s discretion and against the established principles guiding the exercise of that discretion.  As the Appeal Committee pointed out in Wong Tak Keung v HKSAR FAMC 47/2005, 6 October 2005:

“Within the framework of the relevant principles, costs are dealt with on the basis of a broad discretion.  In the absence of any controversy over the principles that govern the award or refusal of costs, it would take rare and exceptional circumstances indeed to warrant an appeal to the Court of Final Appeal on costs alone.”

The present case raises no controversy as to the applicable principles and the circumstances are in no sense exceptional.  The Judge was quite entitled to find that the applicant had brought suspicion upon himself.

7.Similarly, the order for a re-trial is in the intermediate court’s discretion, exercised taking all the circumstances into account.  No questions of principle arise in that context either.  The Judge was entitled to order a re-trial given the grounds upon which the appeal succeeded.  There is no arguable case of any substantial and grave injustice.

8.The application must therefore be dismissed.

Mr Lawrence Hui (instructed by Messrs Yaddy Cheung & Co) for the applicant

Mr IC McWalters SC and Mr Gary Lam (of the Department of Justice) for the respondent