Nancy Ann Kissel v. HKSAR

FACC No. 2 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 414 OF 2005)

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Between:

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JUDGMENT ON COSTS

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Mr Justice Bokhary PJ and Mr Justice Chan PJ :

1.This is the Court’s judgment on costs.  An accused person who succeeds at trial or on intermediate or final appeal is normally awarded costs out of the public revenue.  There is, however, a judicial discretion to deprive such a person of some or all of his or her costs.  The relevant principles were dealt with by the Chief Justice in Ting James Henry v. HKSAR (No.2) (2007) 10 HKCFAR 730.  They do not call for further discussion now.  The circumstances of the present case appear from the judgments delivered in this Court on 11 February 2010 and reported at [2010] 2 HKLRD 435.  They need not be repeated now.  By the written submissions lodged on her behalf, Mrs Nancy Kissel seeks all of her costs here and below.  The prosecution, by the written submissions which they have lodged, opposes the award of any costs to Mrs Kissel.  There is no need to set out any of the rival arguments.

2.Since care must be taken to avoid saying anything that might prejudice the retrial which has been ordered, suffice it to say that having regard to all the circumstances, principally those pertaining to how the case proceeded here and below and the result of the appeal to this Court, we award Mrs Kissel : (i) half of her costs in the trial court (including the costs of applying for bail pending trial); (ii) one-third of her costs in the Court of Appeal (including the costs of seeking a certificate under s.32(2) of this Court’s statute); and (iii) all of her costs in this Court (including the costs of the application to the Appeal Committee for leave to appeal but excluding the costs of the supplemental case which we did not permit Mrs Kissel to file).  All such costs are to be taxed if not agreed.

Written submissions by Mr Gerard McCoy SC, Mr Alexander King SC and Ms Emma Tsang (instructed by Messrs Mallesons Stephen Jacques) for Mrs Nancy Kissel

Written submissions by Mr Kevin Zervos SC (of the Department of Justice) for the prosecution