Lam Yuk Fai, Steve v. HKSAR

FACC No. 12 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 94 OF 2001)

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Between:

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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Woolf NPJ

Date of Decision: 30 June 2006

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DECISION  ON  COSTS

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Chief Justice Li:

1.After we handed judgment allowing the appeal, quashing the conviction and ordering retrial, the appellant's solicitors wrote to the Registrar seeking the costs of the appeal and the Court's procedural directions on how such costs were to be decided.  We directed that such costs be decided upon written submissions.  Such submissions have been filed, and we have considered the same. 

2.It is submitted on the appellant's behalf that it is just and reasonable that his costs of the appeal be paid out of public funds because the appeal decided two points of law of great and general importance, one in his favour so that his conviction was quashed.  The respondent resists costs.  It is submitted on the respondent's behalf - and we accept - that the appellant had by his conduct brought suspicion upon himself.  The respondent also points out that the appellant was convicted, on his guilty plea, at the retrial.  This illustrates the point made by Bokhary J (as he then was) in R v. Man Wai-keung (No. 2) [1992] 2 HKCLR 207 at p.217 that the absence of finality where a retrial is ordered may “sensibly and fairly be viewed as a factor to be taken into account in deciding whether or not to award an appellant costs out of public funds”. 

3.All things considered, we regard it as appropriate that each side be left to bear its own costs before us.  We so order.

Written submissions on costs by Mr H Y Wong (instructed by Messrs Johnny K K Leung & Co.) for the appellant

Written submissions on costs by Mr Gavin Shiu and Ms Polly Wan (of the Department of Justice) for the respondent