HKSAR v. Keung Hang Yee, Hannie

HCMA42/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 42 OF 2008

(ON APPEAL FROM ESCC 1208 OF 2007)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 27 May 2009

Date of Ruling : 27 May 2009

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R U L I N G  O N  C O S T S

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1.This is my ruling on an application for costs by the appellant arising out of her successful appeal against conviction in HKMA42/2008, the judgment in which was handed down on 9 December 2008.  The appellant seeks costs of that appeal as well as those of her trial and of today. 

2.I will not repeat the facts of the case.  They are sufficiently set out in the judgment. 

3.So far as costs of the appeal are concerned I bear in mind the principle enunciated in HKSAR v. Ng Shui Laun [2004] 2 HKLRD 583.  That judgment is in Chinese but the principles are sufficiently set out in the headnote.  The key considerations in the question of an award of costs for a successful appellant are the merits of the overall grounds of appeal and the conduct of the appeal by or on behalf of the appellant : see also HKSAR v. Chiu Fung Kuen, CACC475/2001. 

4.Much of the present appeal was taken up with argument concerning alleged inconsistencies in the magistrate’s Statement of Findings.  Those inconsistencies relied upon were in reality, and quite obviously, not inconsistencies at all, and the basis of the appellant’s complaint relied upon an artificial and overly semantic interpretation of what the magistrate had said.  There was no merit to this aspect of the appeal whatsoever. 

5.Slightly less time was taken in arguing the aspect of the appeal which in fact succeeded.  That is, proceeding on the basis that the appeal was a rehearing, that the conviction was unsafe.  See Chou Shih Bin v. HKSAR [2005] 1 HKLRD 838.  

6.For that reason I order that the appellant receive only one half of her reasonable costs of the appeal.  That calculation of costs is not to include what appears to have been considerable and unnecessary research on behalf of the appellant into a possible appeal against the amount of the fine imposed by the magistrate. 

7.So far as that part of the application which pertains to the trial is concerned I am satisfied that the appellant, while her appeal was successful, brought suspicion upon herself so as to disentitle her to her costs of the trial.  At the time of the events the appellant was a serving police officer who herself had, in a previous trial, been found to have been the victim of harassing phone calls from a defendant who was subsequently the alleged victim in the present case. 

8.Given the previous relationship between the appellant and the complainant, and the number of telephone calls made by the appellant to the complainant in the present case, and given the appellant’s status as a serving police officer I am satisfied, so far as the trial is concerned, the appellant brought suspicion upon herself so as to disentitle her to her costs. 

9.So far as this application is concerned costs follow the event and the appellant is allowed her reasonable costs of today. 

10.In the result the appellant is awarded only half of her reasonable costs of the appeal and the whole of her reasonable costs of today.  I might add that in my view the appeal did not reasonably require two counsel.  

Ms Vinci Lam, SPP of the Department of Justice, for the Respondent

Mr David Khosa, instructed by  Messrs Tang, Lai & Leung, for the Appellant