HKSAR v. Hung Chan Wa

CACC411/2003
CACC61/2004

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)

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CACC411/2003

CACC61/2004 

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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

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DECISION ON COSTS

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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 : -

“There will be 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.”

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