Winnie Lo v. HKSAR
Read the full judgment text of FACC 2/2011 on BabelCite. This Court of Final Appeal judgment was delivered on 6 July 2012 before Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Stock NPJ, Sir Anthony Mason NPJ.
Costs – criminal appeal – successful appellant – costs of trial and appeals – whether costs should be denied on ground of self-suspicion – no – whether costs should be reduced for issues lost – no – certificate for counsel – certificate for three counsel refused – appellant, a solicitor, convicted of conspiracy to commit maintenance – conviction quashed by Court of Final Appeal – appellant sought costs of entire proceedings – respondent argued costs should be minimised – appellant had not brought suspicion upon herself – prosecution relied on erroneous inferences – appellant succeeded on substantial and grave injustice ground – legal uncertainty point certified but not successful – desuetude point not orally argued – bulk of hearing on successful ground – no justification for three counsel – appellant awarded costs here and below
Legal issues: Whether costs of trial should be denied on ground of self-suspicion · Whether costs should be reduced for issues lost · Whether certificate for three counsel should be granted
Outcome: Appellant awarded costs of the proceedings here and below, subject to taxation. Certificate for three counsel refused.
Cited by 4 cases · Cites 3 cases
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FACC No. 2 of 2011 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 2 OF 2011 (CRIMINAL) (ON APPEAL FROM CACC NO. 254 OF 2009) _____________________ Between :
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__________________________ JUDGMENT ON COSTS __________________________ Mr Justice Ribeiro PJ: 1.This is the judgment of the Court. The appellant, a practising solicitor, was convicted in the District Court of conspiracy to commit maintenance in connexion with her conduct of a personal injury action. She was sentenced to imprisonment for 15 months. Her appeal to the Court of Appeal was dismissed. She had served 6 months of her sentence before being granted bail and before her conviction was quashed when this Court allowed her appeal on 30 January 2012. 2.Submissions as to costs have been filed by both sides. Since the appellant essentially seeks the costs of the entire proceedings, subject to minor possible adjustments, we shall focus on the submissions of the respondent urging orders which minimise the costs payable to the appellant. Suspicion brought upon herself 3.The respondent’s first argument is that the appellant should be denied the costs of the trial on the ground that she brought suspicion upon herself. One must therefore ask: What was the nature of the prosecution’s case against her? Did she do something to bring suspicion upon herself so as to encourage pursuit of that case? 4.The proper starting-point is that the appellant was duly instructed by the plaintiff’s next friend and mother to act as solicitor on the record in a bona fide piece of personal injury litigation. There was no suggestion that the appellant had mishandled the case or obtained a settlement which was less than fair. She acted in accordance with counsel’s advice without anyone suggesting that there was anything improper about the way counsel had acted. Nor was it ever suggested that she had shared any part of the settlement amount. Despite the apparently legitimate role played by the appellant as litigation solicitor, the prosecution’s case was that the only reasonable inference to be drawn on the evidence was that she had abetted Cheung’s undoubted champerty by helping Cheung to get her hands on 25% of the settlement funds. 5.Did the appellant do anything to justify a suspicion that she had so abetted Cheung? In our view, the answer is plainly “No”. The defects in the approach of the prosecution and the trial judge are summarised in the judgment as follows:
6.The prosecution persisted in the case, not because the appellant had brought suspicion on herself, but because it espoused the drawing of erroneous and unjustified adverse inferences against her. She should be deprived of costs in relation to issues determined against her 7.The appellant succeeded on the substantial and grave injustice ground but failed on the two other grounds raised on the appeal. She had sought unsuccessfully to argue that the offences of maintenance and champerty are unconstitutional for uncertainty and also that, not having been invoked for such a long time, they had fallen into desuetude. 8.The respondent submits that she should therefore be deprived of 50% of her costs of the substantive hearing in this Court and also of the hearing in the Court of Appeal, where the legal uncertainty point was also unsuccessfully taken. However, the legal uncertainty point was certified by the Court of Appeal and leave granted by the Appeal Committee to argue it. This was the first criminal prosecution mounted for maintenance (or champerty) in a very long time and the question whether it was unconstitutionally uncertain merited consideration by the Court. The desuetude point was only addressed in the appellant’s printed case and not mentioned orally at the hearing. The great bulk of the hearing was devoted to deciding whether there had been a substantial and grave injustice and on that issue, the appellant succeeded. We do not consider that in the circumstances of this case, the appellant should be deprived of any part of her costs because she lost on the other two points. Certificates for counsel 9.Guidance was given as to the grant of certificates for the appearance of more than one counsel in this Court in Hebei Enterprises Ltd v Livasiri & Co[2] and in HKSAR v Egan (No 2).[3] The Court of Appeal gave similar guidance in Cheung Cho Kam Sindy v Cheung Yuet Ying Rose.[4] 10.It is unnecessary to ask for a certificate for two counsel at substantive hearings of this Court. A certificate should be sought for three or more counsel. In the present case, such a certificate is sought by the appellant in relation to the applications before the Court of Appeal and the Appeal Committee for leave to appeal; the substantive hearing of the appeal in this Court and the written submissions as to costs. We are unable to see any justification for three counsel and decline to provide a certificate in respect of the aforesaid matters. Other matters 11.The Court is invited to make costs orders concerning various applications, including bail applications made below. Those are matters which, if necessary, should be dealt with on taxation and not by the Court. Subject to questions of taxation, we order that the appellant should have her costs here and below.
Written submissions by Mr Clive Grossman SC, Mr Lee Siu Him and Mr Chase Pun, instructed by Kong & Chang for the appellant Written submissions by Mr Kevin P Zervos SC, DPP, and Mr Raymond Cheng, of the Department of Justice for the respondent |
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