Ting James Henry v. HKSAR

FAMC 60/2006 & FACC 4/2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 318 OF 2005)

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2007 (CRIMINAL)

(ON APPEAL FROM CACC NO. 318 OF 2005)

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Between:

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Coram :  Acting Registrar S. Kwang in Chambers

Dates of Hearing : 22 and 23 September 2008

Date of Ruling :  4 November 2008

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RULING ON COSTS OF TAXATION

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1.Pursuant to the Judgment on Costs handed down by this Court on 14 December 2007, the Appellant lodged his bill of costs for taxation on 4 February 2008.  With the agreement of both parties, the taxation was initially conducted on papers.

2.On 14 May 2008, after taxing most of the items of the Appellant’s bill of costs on papers, I gave directions for an oral hearing on various items (in particular the counsel’s fees).

3.Apart from those items that I directed for oral hearing, by letter dated 23 May 2008, the Appellant’s solicitors wrote to the court seeking oral hearing on the following three additional issues: -

(a)      the Appellant’s costs incurred for obtaining evidence from the Canadian proceedings (Items Nos 463-464 of the bill);

(b)     the Appellant’s costs incurred for obtaining expert’s opinion on the point of Human Rights; and

(c)     the Appellant’s costs incurred for obtaining opinion from Messrs Grant Thornton.

4.After several adjournments of the hearing to suit the attendance of the counsel of the parties, the outstanding issues on the Appellant’s bill of costs were heard by me on 22 and 23 September 2008.

5.Counsel representing the Appellant indicated in her written submission that the Appellant would not proceed to argue the costs incurred for obtaining expert’s opinion on the point of Human Rights and for obtaining the opinion from Messrs Grant Thornton.  As a result, on 22 September 2008, I heard submissions from Counsel for both parties on the following three legal issues while the quantum of the items involved under the bill of costs was heard on 23 September 2008:-

(a)      the basis for taxation in this case in this Court;

(b)     the entitlement of two leading Counsel and one junior Counsel before this Court; and

(c)     the costs incurred for obtaining evidence from the Canadian proceedings.

6.At the end of the taxation, while the Appellant asked for costs of the taxation hearing, in particular the hearings on 22 and 23 September 2008, Counsel for the Respondent objected to costs to be awarded in favour of the Appellant in respect of the hearing on 22 September 2008.  It was argued by Mr Martin Hui, Counsel for the Government, that since the Court ruled against most of the points raised by the Appellant at the hearing on 22 September 2008, no costs should be allowed for the Appellant in respect of that hearing.  Nevertheless, the Government did not seek costs against the Appellant.

7.On the first legal issue, the Appellant’s counsel argued that since this is a criminal case, the basis for the taxation in respect of the costs incurred in this Court should be taxed under the Costs in Criminal Cases Ordinance.  For reasons as stated in a separate ruling, I rejected such argument. 

8.Regarding the entitlement of the costs incurred for one Queen’s Counsel, one Hong Kong Senior Counsel and one Junior Counsel appearing before this Court, Mr Hui conceded, subject to the arguments on quantum, to pay the fees for the London silk and the Hong Kong Junior Counsel.  The only argument surrounded on whether it is necessary and proper to retain a Hong Kong Senior Counsel in this case.  I also ruled against the Appellant on this point to the extent that no fee would be allowed for the Hong Kong Senior Counsel in appearing before this Court for the substantive appeal but I allowed the fees for the Hong Kong Senior Counsel in preparing the Appellant’s case only.

9.The last point concerning the costs for obtaining evidence from the Canadian proceedings is relatively a more simple issue.  It only occupied less than one hour at the hearing on 22 September 2008.  In the written submission of the Appellant’s counsel, such point affected Items Nos 463-468, 967-1004 of the Appellant’s bill of costs.  However, as stated in the Appellant’s solicitors’ letter dated 23 May 2008, only two items (namely 463 and 464) were involved.  Upon taking further instructions, the Appellant conceded to argue only the said two items for the purpose of this issue.  After hearing the submission of the Appellant’s counsel, Mr Hui has sensibly accepted the relevance of the work involved was relating to the consent summons to adduce further evidence signed between parties on 6 October 2007.  Subject to the arguments on the quantum, I ruled in favour of the Appellant that these two items were in principle recoverable.

10.It is apparent from what had transpired at the hearing on 22 September 2008 that the Appellant has failed to persuade me his arguments in most of the issues involved on that day.  In the premises, in order to reflect fairly as to the outcome, I agree with the Respondent’s counsel that, while the Appellant is entitled to have the costs of the taxation proceedings, there should be no order as to costs of preparing and attending the taxation hearing on 22 September 2008.  On quantum, parties should refer separately to my written rulings as stated in the Appellant’s schedules of additional costs attached to the letter dated 30 September 2008.

11.By now, all the items of the Appellant’s bill of costs have been taxed.  Parties should follow the usual directions as stated under paragraph 3 of Practice Direction 14.3 to submit a draft Allocatur to the Court for approval.

Miss Maggie Wong and Mr Henry Ho (LCD) instructed by Messrs Chong & Partners, for the receiving party

Mr Martin Hui of the Department of Justice, for the paying party