HKSAR v. Lau Sau Yu

[English Translation – 英譯本]
CACC 213/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2008

(ON APPEAL FROM DCCC NO. 1008 & 1009 OF 2007)

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BETWEEN

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Before: Hon Yeung VP, Kwan JA and Chu JA in Court

Date of Written Submissions: 12, 20 & 30 December 2011 & 6 January 2012

Date of Judgment: 8 February 2012

J U D G M E N T

Hon Chu JA (giving the judgment of the Court):

1.The appellant applied to the Chief Executive for referral of her case to the Court of Appeal pursuant to s.83P of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. The Chief Executive allowed the application and referred the whole case to this Court. Hence, this Court treated it as the appellant’s appeal against conviction. On 2 December 2011, this Court handed down judgment allowing the appeal and quashing the appellant’s conviction on charge 10.

2.Subsequently, the appellant applied to this Court for costs, such costs being confined to costs of the proceedings following the Chief Executive’s approval to refer the whole case to the Court of Appeal.  The respondent opposed the application.

3.On 22 December 2011, this Court wrote to the counsel for the appellant and the Department of Justice, requesting both parties to provide further submissions regarding the legal basis of the costs application.

Section 9 of the Costs in Criminal Cases Ordinance

4.In her submissions the appellant makes it clear that her costs application is made pursuant to s.9 of the Costs in Criminal Cases Ordinance, Cap. 492, Laws of Hong Kong (“CCCO”).  Section 9 provides as follows:

“ (1) Where the Court of Appeal allows an appeal to which this section applies, the Court of Appeal may order that costs be awarded to the defendant.

(2) This section applies to any appeal -

(a) under section 82 of the procedural Ordinance against conviction;

(b) under section 83G or 83H of the procedural Ordinance against sentence, if and only if, the Court of Appeal quashes the sentence and in place of it imposes a less severe punishment than that imposed by the court below, under section 83I(4) of that Ordinance;

(c) under section 83J of the procedural Ordinance against verdict of not guilty by reason of insanity, except where the Court of Appeal deals with the appeal under section 83K(4)(a) of that Ordinance;

(d)       under section 83M of the procedural Ordinance against a finding under section 75 of that Ordinance that the defendant is under a disability, except where the Court of Appeal deals with the appeal under section 83N(3) of that Ordinance.”

5.The respondent submits that s.9 exhaustively sets out all situations to which the section applies and that, accordingly, this Court has no power to award costs in situations not expressly covered by the provision.  The appellant has not suggested that, apart from s.9, this Court also has any inherent power or other power to make costs orders.  We agree with the respondent’s submission that the power of the Court of Appeal to award costs to a defendant in a criminal case is derived from s.9.  Therefore, except in the circumstances set out in s.9(2), the Court of Appeal has no power to award costs to a defendant.

The issue in this application

6.The appellant’s case plainly does not fall within any of the situations set out in s.9(2)(b) to (d).  The issue is whether the appellant can invoke s.9(2)(a) in support of her costs application.

7.Section 9(2)(a) provides that s.9 applies to any appeal against conviction made under s.82 of the Criminal Procedure Ordinance (“CPO”). Section 82 provides as follows:

“ (1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2) The appeal may be-

(a) on any ground which involves a question of law alone; and

(b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;

but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.”

8.The appellant submits that, although her case was referred to the Court of Appeal pursuant to s.83P of the CPO, s.9(2)(a) is still applicable because, by virtue of  s.83P(1)(a) [1] which provides that the Chief Executive may refer to the Court of Appeal the whole case which shall then be treated for all purposes as an appeal to the Court of Appeal by the appellant, her case should be treated as an appeal made pursuant to s.82(1) of the CPO.

9.The respondent takes issue with the appellant’s argument, relying on two main grounds.  First, the respondent submits that in enacting s.9 of the CCCO, the legislature deliberately excluded s.83P of the CPO from the ambit of s.9.  Second, the respondent points out that although s.83P(1) of the CPO provides that “the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person”, it makes no mention of s.82. Furthermore, the words “all purposes” under s.83P(1) means that it is not necessary for the appellant to obtain leave to appeal in advance and that, in dealing with the case (including the hearing itself), the Court of Appeal shall treat the case as an appeal as far as the exercise of the powers (such as the power to admit new evidence) and the making of judgment (including any order for retrial) in relation to the hearing are concerned.

Our views

10.The CCCO came into effect on 17 January 1997.  Section 9 of the CCCO provides for the award of costs in criminal appeal cases.  That section replaces s.83XX[2] of the CPO and extends the power of the court to award costs to defendants in criminal appeal cases by conferring upon the court the power to award costs to a defendant in his appeal against sentence (s.9(2)(b)) and by repealing the original provision that no appellant would be entitled to costs if a retrial was ordered (see s.83XX(3)(a)).

11.Both s.83XX and s.9 make provisions in respect of various kinds of appeals.  However, regarding appeals against conviction, both sections expressly provide that the provisions only apply to appeals against conviction under s.82 of the CPO, and neither of them covers appeals referred to the Court of Appeal pursuant to s.83P of the CPO.  It is particularly noteworthy that at the time when s.83XX[3]was in force, s.83P was already part of the CPO[4].  On the other hand, other provisions (such as s.83G and s.83H) which were then part of the CPO were expressly included in s.83XX and s.9 which subsequently replaced it.

12.In our view, the legislature deliberately confined the court’s power in awarding costs in appeals against conviction to those appeals made pursuant to s.82 of the CPO. Moreover, the legislature also deliberately excluded referrals to the Court of Appeal by the Chief Executive at his discretion pursuant to s.83P from the scope of s.9.  In our view, the legislative intent behind s.9 is that the power of the Court of Appeal to award costs to a defendant does not extend to cases referred pursuant to s.83P.

13.Although s.83P(1)(a) provides that cases referred to the Court of Appeal by the Chief Executive shall be treated for all purposes as appeals to the Court of Appeal, these cases are not to be equated with the appeals against conviction under s.82 of the CPO and hence fall within  s.9(2)(a).  We also agree with the respondent’s submission that the purpose of the provision in s.83P(1)(a) that “(the case) shall be treated […] as an appeal to the Court of Appeal by that person” is merely to make it clear that, following the Chief Executive’s decision of referral, these cases shall be dealt with as appeals to the Court of Appeal, which shall hear and determine these cases as if they are appeal cases. In such circumstances, s.83P(1)(a) should not be construed as widening the power of the Court of Appeal to award costs under s.9 of the CCCO.

Conclusion

14.Given the above analysis, we are of the view that the appellant’s costs application does not fall within the ambit of s.9(2)(a) of the CCCO.  The appellant’s costs application is dismissed accordingly.

Mr Alex Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent

Mr Richard Wong and Mr Danny Chan, instructed by Cheung & Choy, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.

[1] The full text of section 83P(1) is as follows:

“(1) Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Chief Executive may, if he thinks fit, at any time either-

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or

(b) if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.”

[2] The full text of section 83XX is as follows:

“83XX.

(1) This section applies to any appeal-

(a) under section 82 against conviction;

(b) under section 83J against a verdict of not guilty by reason of insanity;

(c) under section 83M against a finding under section 75 that the appellant is under disability.

(2) Where an appeal to which this section applies is allowed, the Court of Appeal may subject to subsection (3), order the payment out of the public revenue of the costs of the appellant.

(3) No order shall be made under this section where-

(a) in the case of an appeal referred to in subsection (1)(a), the appellant is ordered under section 83E to be retried;

(b) in the case of an appeal referred to in subsection (1)(b), the provisions of section 83K(4)(a) apply; or

(c) in the case of an appeal referred to in subsection (1)(c); the provisions of section 83N(3) apply.

(4) The costs payable under this section shall be such sums as appear to the Court of Appeal reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the appeal, including any proceedings preliminary or incidental thereto or in the court of trial or before a magistrate.

(5) The amount of costs ordered to be paid under this section shall, except where the amount is fixed by the Court of Appeal, be ascertained by the Registrar.”

[3] Section 83XX came into effect on 12 January 1978.

[4] Section 83P came into effect on 1 September 1972.