HKSAR v. Hung Chan Wa
Read the full judgment text of CACC 411/2003 on BabelCite. This Court of Appeal judgment was delivered on 28 April 2006 before Ma CJHC, Stuart-Moore V-P, Stock JA.
Criminal law – dangerous drugs – constitutionality of sections 47(1) and (2) of the Dangerous Drugs Ordinance, Cap.134 – prospective overruling – appointment of amicus curiae by court on its own initiative – costs – whether costs of amicus curiae should be borne by the Respondent – costs order nisi varied. On 26 January 2006, the Court of Appeal handed down judgment on the important issue of prospective overruling, consequential on its decision on the constitutionality of sections 47(1) and (2) of the Dangerous Drugs Ordinance, Cap.134. Given the importance of the issue, the court on its own initiative engaged Mr Benjamin Yu SC as amicus curiae, and made a costs order nisi that the costs of the amicus curiae and of the appellants be paid by the respondent, to be taxed if not agreed, the appellants' costs to be taxed in accordance with the Legal Aid Regulations. The Respondent applied to vary the costs order nisi, submitting that the costs of the amicus curiae should not be borne by it, and that there be no order as to costs for the prospective overruling hearing. The Appellants indicated they would make no submissions on costs unless an order was sought against them, and the Respondent sought no such order. The Court held that it was not necessary to determine whether it had jurisdiction in the first place to order the costs of an amicus curiae to be paid by the Respondent, but that even if such jurisdiction existed, since the court on its own initiative considered it necessary to appoint an amicus curiae, it would not be right to penalize the Respondent with an order to pay the amicus's costs. The order nisi was varied to an order that there be no order as to costs for the prospective overruling hearing. There was likewise no order as to costs as between the Respondent and the Appellants for the prospective overruling hearing, but the appellants' costs for that hearing remained to be taxed in accordance with the Legal Aid Regulations. There was also no order as to costs for the Respondent's application to vary.
Legal issues: Whether the costs of an amicus curiae appointed by the court on its own initiative should be borne by the Respondent
Outcome: Costs order nisi varied; no order as to costs for the prospective overruling hearing, and no order as to costs of the Respondent's application to vary. The appellants' costs for that hearing remain to be taxed in accordance with the Legal Aid Regulations.
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CACC411/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NOS. 411 OF 2003 AND 61 OF 2004 (ON APPEAL FROM HCCC NOS. 17 OF 2003 AND 211 OF 2003) ______________________ CACC411/2003
CACC61/2004
______________________ Before : Hon Ma CJHC, Stuart-Moore V-P and Stock JA Date of Written Submissions on Costs : 29 March 2006 Date of Handing Down Decision on Costs : 28 April 2006 ____________________ DECISION ON COSTS ____________________ Hon Ma CJHC (giving the decision of the Court) : 1.On 26 January 2006, judgment was handed down on the important issue of prospective overruling. This was an issue consequent on the decision of the Court on the constitutionality of sections 47(1) and (2) of the Dangerous Drugs Ordinance, Cap.134. 2.The issue of prospective overruling had been of sufficient importance for the court to engage the assistance of an amicus curiae – in this case, Mr Benjamin Yu SC. The issue then having been determined against the Respondent, we said this in our judgment : -
3.The Respondent has applied to vary the costs order nisi, submitting essentially that the costs of the amicus curiae should not be borne by it. The matter was dealt with by written submissions. For their part, the Appellants, through their solicitors, made it clear that they would not make any submissions regarding costs unless an order was sought against them. The Respondent sought no such order but submitted there be no order as to costs for the prospective overruling hearing. Presumably the Appellants were content with this order. 4.We are of the view that the costs order nisi should be varied. The Respondent’s written submissions suggested that perhaps the court had no jurisdiction in the first place to order the costs of an amicus curiae to be paid by the Respondent. We do not find it necessary to determine this point. Even if such jurisdiction exists, given that it was the Court on its own initiative which considered it necessary to appoint an amicus curiae, it would not be right to penalize the Respondent with an order to pay the costs of Mr Yu SC. 5.Accordingly, the order nisi is varied to an order that there be no order as to costs for the prospective overruling hearing. We are informed that the Appellants do not seek an order for costs and, accordingly, there will be no order as to costs as between the Respondent and the Appellants but the Appellants’ costs for that hearing should, however, remain to be taxed in accordance with the Legal Aid Regulations. As for the costs of the Respondent’s application to vary, there should likewise be no order as to costs.
Mr Clive Grossman SC leading Mr Hanif Mohamed Mughal instructed by Messrs M L Tam & Co for the Appellants Mr Gerard McCoy SC leading Mr Gavin Shiu of the Department of Justice for the Respondent Mr Benjamin Yu SC, amicus curiae |
Further hearings and rulings under CACC 411/2003