HKSAR v. Kanjanapas, Chong Kwong Derek and Others
Read the full judgment text of CACC 248/2006 on BabelCite. This Court of Appeal judgment was delivered on 23 October 2009 before Ma CJHC, Tang VP, Wright J.
Criminal law – costs – Costs in Criminal Cases Ordinance (Cap 492) – s.9, s.9B, s.19 – Witness Protection Ordinance (Cap 564) – acquittal at trial – refusal of costs by trial judge – appeal against conviction allowed – application for certificate under s.32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) – Whether a party can obtain an order for his District Court trial costs on acquittals where the trial judge refused costs – Whether a party whose conviction is quashed on appeal is entitled to trial costs despite allegedly having brought suspicion on himself – Whether the respondent prosecutor's unsuccessful s.32(2) HKCFAO certificate application was 'without merit' so as to attract costs under s.9B of the CCCO – 4th Applicant acquitted of two counts of conspiracy (Charges 1 and 3) but trial judge refused his costs – Court of Appeal allowed his appeal and quashed convictions on two counts of attempting to disclose information about a witness protection programme participant (Charges 4 and 5) – The Court held that there is no appeal from a refusal to grant costs to an acquitted party in the District Court under the CCCO, the only recourse being judicial review, and accordingly the 4th Applicant could not recover trial costs on Charges 1 and 3 – The Court held that the 4th Applicant was entitled to his trial costs on Charges 4 and 5 under s.9 of the CCCO, rejecting the contention that he had brought suspicion on himself, as the majority had found the prosecution had not proved the requisite mens rea or actus reus – The Court held that the s.32(2) certificate application was not 'without merit' within s.9B of the CCCO, given that the Appeal Committee of the Court of Final Appeal had granted leave on the same two questions, and made no order as to costs of that application – Orders: 4th Applicant to have his costs of the trial insofar as related to Charges 4 and 5, his bail application on 1 August 2006, the directions hearing on 14 May 2008, the leave to appeal application (with a certificate for two counsel), and the Respondent's Case Stated appeal, such costs to be taxed if not agreed.
Legal issues: Recoverability of trial costs in the District Court for charges on which the applicant was acquitted where costs were refused by the trial judge · Recoverability of trial costs in respect of charges on which conviction was quashed on appeal · Award of costs against prosecutor for unsuccessful s.32(2) HKCFAO certificate application
Outcome: The 4th Applicant was granted his costs in respect of the trial insofar as it related to Charges 4 and 5, his bail application, the directions hearing, his application for leave to appeal against conviction on Charges 4 and 5 (with a certificate for two counsel), and the Respondent's Case Stated appeal. The application for costs in respect of the trial on Charges 1 and 3 (acquitted at trial but refused costs by the trial judge) and in respect of the s.32(2) certificate application was refused.
Cites 3 cases
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CACC 248/2006 CACC 248/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 248 OF 2006 (ON APPEAL FROM DCCC NO. 298 OF 2005) _________________________ BETWEEN
_________________________ CACC 140/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 140 OF 2007 (ON APPEAL FROM DCCC NO. 298 OF 2005) _________________________ BETWEEN
_________________________ Before : Hon Ma CJHC, Tang VP & Wright J Dates of Written Submissions: 9 April 2009 (4th Applicant), 16 April 2009 (Respondent) & Date of Handing Down Judgment on Costs: 23 October 2009 _____________________ JUDGMENT ON COSTS _____________________ Hon Ma CJHC (giving the Judgment of the Court) : 1.Following a 55‑day trial before H H Judge Fung CDJ (now Fung J) in the District Court, Mr Kevin Egan (the 4th Applicant) was acquitted of two charges of conspiracy (Charges 1 and 3 at trial), and convicted of two charges of attempting to disclose information about the identity of a participant in the witness protection programme (Charges 4 and 5). Notwithstanding the acquittals on the conspiracy charges, the Judge refused the 4th Applicant’s his costs. 2.The 4th Applicant applied for leave to appeal against conviction and sentence in relation to Charges 4 and 5. This Court, in a judgment handed down on 12 February 2009, by a majority, gave leave to the 4th Applicant to appeal against conviction and allowed the appeal. The convictions on those charges were accordingly set aside. The Court also dismissed, again by a majority, an appeal by the Secretary for Justice (the Respondent) by way of Case Stated regarding the 4th Applicant’s acquittal on one of the conspiracy charges (Charge 1). 3.Subsequent to the judgment of this Court, by a Notice of Motion dated 11 March 2009, the Respondent applied for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (the HKCFAO) in relation to two questions of law arising out of Charges 4 and 5. These questions were said to be of great and general importance. At a hearing on 25 March 2009, the Court dismissed the application. The Appeal Committee of the Court of Final Appeal has, however, by a decision dated 14 May 2009, given leave to appeal on these points. 4.The 4th Applicant now applies for orders for costs in his favour in respect of the following : ‑
5.The Respondent does not resist the orders for costs in relation to the matters set out in paragraph 4(2) to (5). Nothing more, therefore, needs be said in relation to these events. We now deal with the two outstanding matters. Costs of the trial in the District Court 6.The 4th Applicant seeks an order in relation to the whole of the costs incurred by him at the trial. However, it will be recalled that, regarding Charges 1 and 3 (of which he was acquitted), he was refused his costs by the trial judge. 7.No appeal lies from a refusal to order costs in favour of an acquitted party in the District Court. The Costs in Criminal Cases Ordinance, Cap. 492 (the CCCO) only provides for an appeal where a party wishes to challenge an order for costs made against that party or where a wasted costs order is made : see section 19. See also : Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, at 537E. The only procedure by which a refusal to order costs in the District Court may be challenged would appear to be by way of judicial review : see, for example, Cheung Bik Kwong v Attorney General & Anor [1999] 2 HKC 870. For completeness’ sake, we should just also mention that a possible avenue of appeal against a refusal to order costs in the Court of First Instance would be to the Court of Final Appeal : see section 31(b) of the HKCFAO; Tong Cun Lin at 537E‑H; Chan Tit Shau v HKSAR (2004) 7 HKCFAR 492. 8.In the present case, there has been a refusal to order costs in favour of an acquitted party in the District Court. As an appeal to this Court is not possible under the CCCO and no judicial review proceedings have, as far as we are aware, been instituted (in any event no such proceedings are before us), the 4th Applicant cannot be entitled to his costs of trial in the District Court so far as Charges 1 and 3 are concerned. 9.We now deal with the question of the costs of the trial as they relate to Charges 4 and 5. The 4th Applicant’s appeal to this Court succeeded and his convictions on these charges were accordingly set aside. He now claims the costs of trial under section 9 of the CCCO. 10.The Respondent resists an order for costs on the basis that the 4th Applicant had brought suspicion on himself : ‑
11.In our judgment, that passage provides no basis to resist an order for costs : ‑
12.Accordingly, the appropriate order for costs in relation to the trial is that the 4th Applicant should have his costs insofar as such relate to Charges 4 and 5. It is also appropriate that such costs be taxed, unless agreement is reached by the parties otherwise. Costs of the Respondent’s application for a certificate under section 32(2) of the HKCFAO 13.Section 9B of the CCCO states : ‑
14.This provision contains a modification of the rule that, generally in legal proceedings, costs follow the event. The added requirement is that costs can be awarded to a party who successfully resists an application for a certificate under section 32(2) of the HKCFAO, only where the court is satisfied that the application by the prosecution was “without merit”. 15.In our judgment, the application cannot be said to have been without merit. Apart from anything else, the conclusions reached by the majority of this Court in relation to Charges 4 and 5 may yet be reversed by the Court of Final Appeal, and the conclusions of the minority, in turn supported. We would also point to the fact that the Appeal Committee of the Court of Final Appeal has given leave to appeal on the two questions for which the certificate under section 32(2) of the HKCFAO was sought. 16.The appropriate order for costs in respect of this application is that there be no order for costs. Conclusion 17.For the above reasons, we therefore order that the 4th Applicant be given his costs in relation to : ‑
Such costs are to be taxed, if not agreed.
Mr Raymond Pierce, instructed by Messrs Robertsons for the 4th Applicant Mr Roger Beresford on fiat for Department of Justice for the Respondent |
Cases cited in this judgment
Further hearings and rulings under CACC 248/2006