HKSAR v. Leung Wai Hung

cacC 52/2006

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL APPEAL NO. 52 of 2006

(on appeal from HCCC NO. 263 of 2005)

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BETWEEN

Before: Hon Stock JA, Beeson and McMahon JJ in Court

Date of Hearing: 19 September 2008

Date of Judgment: 19 September 2008

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.On 26 January 2007 this court allowed an application for leave to appeal against conviction, granted leave to appeal and, treating the hearing of the application as the appeal, quashed the appellant’s conviction for an offence of conspiracy to traffic in dangerous drugs of which he had been convicted in January 2006 after trial before a judge and jury.

2.At that stage, there no application for costs was made either in respect of the appeal or for costs below.

3.The retrial took place before a judge and jury in July 2007, upon which the applicant was acquitted and awarded the costs of that trial.

4.The problem with this application, which is an application for costs of the appeal and costs of the first trial, is delay.  Had the application been made on time, and applying the principles which guide the exercise of discretion in such matters, we would have granted the order sought.

5.It was said in R v Kwok Moon-yam and Lok Man-chiu [1989] 2 HKLRD 396 that if there is to be an application for costs, it should be made upon the judgment of the Court of Appeal being pronounced and in respect of all proceedings for which the order is sought; and in R v Chan Kwong-yik Cr App No. 179 of 1995 that: “The court is loath to entertain [applications made subsequent to the determination of an appeal].”  The practical difficulties that are posed by delay were mentioned in R v Tsui Ching Kwai Cr App No. 554 of 1988, where the Court said that if the practice is not followed, costs of a late application may not be awarded “unless there be good reason.”

6.One reason for delay, advanced in the papers in this case, is that between January and July 2007 the appellant was continuously in custody.  That is not of itself an acceptable reason for failure to make the application when judgment was pronounced.

7.Be that as it may, in September 2007, those acting for the appellant wrote to the Department of Justice seeking the Department’s agreement to a costs award for the appeal and original trial, adding that counsel did not make the application for costs upon the successful appeal because it was considered that costs for the appeal as well for the original trial should be dealt with after the conclusion of the retrial.  That is an explanation which Mr Duncan SC for the appellant, has repeated today, having had the opportunity of discussing the matter with leading and junior counsel who appeared on the appeal.  That, we think, was an erroneous view of the position in law, although we accept that counsel thought that the one result might influence the other.

8.What is notable, however, is that there was no reply to the letter of 17 September.  It is also notable that the respondent concedes before us that had the application been made in time, it would not have been opposed; in other words that the case was one in which the Court was likely to have awarded costs in the appellant’s favour, there being no reason, such as bringing the prosecution upon himself, for not doing so.

9.So the solicitors for the appellant wrote again, this time in November 2007, pointing out that they had received no reply and asking for one, saying that if none was forthcoming, an application would be made to the Court.  That request was as unsuccessful as the first, and there was again no reply.  Mr Leung for the respondent has today advanced an explanation that he passed both letters to the Costs Unit in the Department of Justice asking that Unit to send a reply to the effect that the respondent would, on account of delay, oppose the application for costs and that the application should be made to the Court.  The Costs Unit on neither occasion acted in accordance with his request, for reasons which are described before us today as ‘oversight’.  It suffices to say that this, in relation to no fewer than two letters, is hardly satisfactory. 

10.In these circumstances, we think that the appellant should have his costs of the appeal and of the first trial.  We have been asked by the respondent to say that had the application been made when judgment was delivered upon the appeal, this application would have been unnecessary and that, therefore, the costs of it should be treated as canceling out the costs of the appeal, permitting the award of costs nonetheless to the appellant of the costs of the court below.  That is a course that is sometimes adopted but we do not think it appropriate in this case because, first, the solicitors acting for the appellant sought an agreement as to costs, to which proposal there was twice no reply and, secondly, we think it falls ill for the Department of Justice to complain about delay.  In any event, had the matter properly been considered by the Department, it may be that the formula which that they now suggest might have afforded a basis for avoiding this application to the Court.  So we do not propose to apply the suggested formula.

11.Accordingly, we order costs of the appeal and of the first trial to the appellant, to be taxed if not agreed.

Mr David Leung, SPP, of Department of Justice for the Respondent

Mr Peter Duncan, SC and Mr Anthony Lo, instructed by Messrs Rita Law & Co. for the Appellant