Ko Kit v. Hong Kong Special Administrative Region

FAMC No. 64 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 65 OF 2009)

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Between:

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Appeal Committee:  Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

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JUDGMENT ON COSTS

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Mr Justice Bokhary PJ :

1.After her application for leave to appeal to the Court of Final Appeal had been filed, this applicant sought and obtained leave to withdraw her application.  She withdrew it because she was advised that pursuing it might be detrimental to her application for early release on parole.  In seeking against her its costs of the application for leave to appeal, the respondent contends in its written submissions that that application was frivolous.  It is to be observed that the application for leave to appeal was not dealt with under rule 7 of the Court’s rules, which is the provision designed to weed out frivolous applications for leave to appeal without according them an oral hearing.  That said, a withdrawn application for leave to appeal ought normally to attract an order for costs against the applicant.  The applicant’s written submissions on costs sensibly and realistically concludes with a statement that costs are discretionary and that she leaves the matter in the Committee’s hands. 

2.All things considered, we think that the applicant should pay the respondent its costs of the application for leave to appeal, and we so order.  But, in all the circumstances, such costs will not include the costs of the written submissions.

Written submissions by Messrs Tung, Ng, Tse & Heung for the applicant

Written submissions by Mr Daniel Marash SC (instructed by the Department of Justice) for the respondent