HKSAR v. Chan Kau Tai
Read the full judgment text of CACC 26/2004 on BabelCite. This Court of Appeal judgment was delivered on 24 March 2006 before Ma CJHC, Woo VP and Tang JA.
Criminal law – costs – appeal allowed and retrial ordered – Prevention of Bribery Ordinance, Cap. 201 – non-disclosure by prosecution – right to privacy – right of silence – bad faith – mixed success on grounds of appeal – whether costs of appeal should follow the event – whether costs of wasted trial recoverable – whether costs of directions hearings recoverable – whether costs of dismissed intervention application recoverable – Appellant convicted of 10 charges of accepting advantages as public servant – Court of Appeal allowed appeal on grounds of non-disclosure and one ground of right to silence but rejected bad faith, right to privacy and two other grounds of right of silence – proper order for costs of appeal is no order despite mixed success where unsuccessful grounds consumed substantial court time – Appellant entitled to costs of trial where non-disclosure caused mistrial – no order as to costs of directions hearings where material obtained was of extremely limited use – Appellant entitled to costs of dismissed intervention application which should not have been made – no order as to costs of the appeal; Appellant to have costs of the trial; no order as to costs of the two directions hearings; Appellant to have costs of the intervention application from the Respondent.
Legal issues: Costs of the appeal given mixed success on grounds · Costs of the trial following successful appeal and retrial order · Costs of the two directions hearings on 31 August 2005 and 1 December 2005 · Costs of the intervention application on 5 December 2005
Outcome: Costs order made: no order as to costs of the appeal; Appellant to have costs of the trial; no order as to costs of the two directions hearings; Appellant to have costs of the intervention application from the Respondent.
Cited by 6 cases
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CACC26/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 26 OF 2004 (ON APPEAL FROM HCCC 333 OF 2002) ______________________ BETWEEN
______________________ Before: Hon Ma CJHC, Woo VP and Tang JA in Court Date of Hearing: 24 March 2006 Date of Decision on Costs: 24 March 2006 ____________________ DECISION ON COSTS ____________________ Hon Ma CJHC (giving the decision of the Court) : 1.On 12 December 2003, the Appellant was convicted of 10 charges of his having, as a public servant, accepted advantages contrary to the Prevention of Bribery Ordinance, Cap.201. On 14 December 2005, this Court gave leave to the Appellant to appeal against conviction, allowed the appeal and ordered a retrial. 2.The Appellant now seeks an order that he be given the costs of the trial and the appeal. He also seeks an order for costs in his favour in relation to two directions hearings (on 31 August 2005 and 1 December 2005 before Tang JA) and a hearing that took place on 5 December 2005 where the ICAC sought leave to intervene as a party to the proceedings. 3.There are accordingly five hearings for which the Appellant seeks our order for costs : -
The appeal 4.As identified in the Reasons for Judgment handed down on 26 January 2006, the Appellant submitted essentially three heads of appeal, these involving the issues of non-disclosure, breach of the right to privacy and the right of silence. While it is true, as Mr Blanchflower SC has submitted, the Appellant has succeeded on two of these three heads (being the issues of non-disclosure and the right of silence), we feel it is necessary, in order properly to determine the incidence of costs, to analyze the matter more closely. 5.The following aspects appear to us to be important : -
6.In the circumstances, we are of the view that the proper order for costs is to make no order even though the appeal has been allowed. The trial 7.Here, we are of the view that the Appellant should have his costs. As much is accepted by the Respondent. The failure to disclose resulted in a mistrial : an important aspect of the case had not been put before the jury for consideration. The costs of the trial were wasted as a result. The two directions hearings 8.These hearings related to the issue of non-disclosure in both the aspects to which reference has been made (more perhaps in relation to the issue of bad faith). The reason for the order that costs be reserved in those directions hearings was evidently that the Court regarded the material sought by the Appellant, as being material that ought at that stage to be disclosed so that at the full hearing of the appeal, all possibly relevant material would be available for the Court’s consideration. Whether or not such material would ultimately be important remained at that stage to be seen. In the event, the material obtained was of extremely limited use. In our view, there should likewise be no order as to costs in relation to these applications. The intervention application on 5 December 2005 9.The application for joinder was dismissed for the reasons contained in the Reasons for Decision also handed down on 26 January 2006. The Appellant ought clearly have the costs of this application from the Respondent. It was an application, as events turned out (and through no fault of the Appellant) one that should not have been made. The fact that, as Mr Zervos SC points out, it was only made by reason of the bad faith issue does not detract from this.
Mr M Blanchflower SC instructed by Messrs Simon C W Yung & Co., for the Appellant Mr Kevin P Zervos SC & Ms Winnie Ho of the Department of Justice for the Respondent and the Intended Intervener |
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Further hearings and rulings under CACC 26/2004