Secretary for Justice v. N

HCMA 101/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 101 OF 2012

(ON APPEAL FROM ESMP 2004 OF 2010)

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BETWEEN

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Before: Hon Macrae J in Court

Date of Hearing: 1 November 2012

Date of Judgment: 23 November 2012

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J U D G M E N T

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1.This matter comes before the Court as an appeal by way of case stated under section 105 of the Magistrates Ordinance, Cap 227. The Secretary for Justice appeals against a decision by the magistrate that he had no jurisdiction to make an order for wasted costs under section 18 of the Costs in Criminal Cases Ordinance, Cap 492 (CCCO) against the legal representatives of the Respondent in proceedings arising from an application for the return of the Respondent’s travel documents under section 17B of the Prevention of Bribery Ordinance, Cap 201 (POBO).

The background

2.The Respondent surrendered his travel documents to the Commissioner of the ICAC (the Commissioner) pursuant to a notice issued by the magistrate under section 17A of the POBO on 17 November 2010.  He subsequently made an application to the principal magistrate at Eastern Magistracy for the return of his travel documents under section 17B of the POBO on 9 December 2010.  That application was fixed to be heard before the magistrate, Mr Marco Li, on 28 December 2010.

3.At the hearing on 28 December 2010, the Respondent was represented by counsel, Mr Dickson Lee, on the instructions of Messrs YT Szeto & Co. Mr Lee made an application for an adjournment of the hearing on the basis that the Respondent had instructed counsel, Mr Kevin Egan, to argue the section 17B application.  However, it was said that Mr Egan was unable to appear that day because he was ill and had lost his voice.  The magistrate accordingly granted the application and re-fixed the hearing to 30 December 2010.

4.On 30 December 2010, the magistrate heard the application presented on behalf of the Respondent by Mr Egan.  At the end of the hearing, counsel for the Secretary for Justice on behalf of the Commissioner informed the magistrate that it had transpired that in the afternoon of 28 December 2010, Mr Egan had been conducting a cross-examination of a prosecution witness on behalf of the second defendant in DCCC 265 & 266 of 2009 at Wanchai District Court.  Counsel for the Secretary for Justice accordingly sought an award of wasted costs against the legal representatives of the Respondent under section 18 of the CCCO on the basis that Mr Egan’s failure to appear in court on 28 December 2010 was without reasonable cause, thus leading to an otherwise avoidable adjournment.

5.It is common ground that by the time of the section 17B application on 30 December 2010, the Respondent had not been brought before a court nor charged with any offence.  He was, however, a suspect under investigation: hence the earlier application under section 17A to surrender his travel documents.

6.The magistrate reserved his ruling on the section 17B application until 4 January 2011, on which day he refused the application.  He further adjourned the proceedings in relation to the wasted costs issue to 11 February 2011, inviting counsel for the Secretary for Justice to prepare written submissions concerning the court’s jurisdiction to make such an award and ordering Mr Egan, Mr Lee and Mr Szeto (as well as another representative from Mr Szeto’s firm) to file affirmations in relation to the matters raised in the application for wasted costs. 

7.On 11 February 2011, after hearing submissions, the magistrate reserved his decision until 4 March 2011, on which day he refused the application for wasted costs on the basis that he lacked jurisdiction to make such an award.

8.On 15 March 2011, the Secretary for Justice made an application for review of the magistrate's ruling of 4 March.  On 16 August 2011, the magistrate confirmed his decision not to make any award of wasted costs against the Respondent’s legal representatives.

9.The Secretary for Justice, being dissatisfied with the decision of the magistrate, which he considered to be erroneous on a point of law, applied to the magistrate to state a case setting out the reasons for his decision.

The magistrate’s reasons

10.In essence, the magistrate was not satisfied that proceedings instituted under sections 17A and 17B of the POBO were criminal proceedings.  Although “criminal proceedings” are nowhere defined in the CCCO, the term “wasted costs” is defined in section 2 to mean “any costs incurred by a party to the proceedings…”. The Ordinance further specifically defines a “party to the proceedings” as “the defendant or the prosecutor”.

11.The magistrate said he was not persuaded that the Respondent was a “defendant” or that the Commissioner was a “prosecutor”, within the meaning of section 2 of the CCCO.  The former term includes “…(c) any person against whom an information or a complaint is laid or criminal proceedings are instituted…”, while the latter includes “…(a) any person who lays an information or a complaint or institutes criminal proceedings…”.  Since the Respondent was not someone against whom any information or complaint had ever been laid, and since the Commissioner, by requiring the Respondent to surrender his travel documents under section 17A, had not instituted criminal proceedings against him, he considered that the Respondent could not be said to be a “defendant” and the Commissioner could not be said to be a “prosecutor”.  Therefore, he considered he had no jurisdiction to entertain the application for an award of wasted costs under section 18 of the CCCO.

The questions posed by the case stated

12.Accordingly, the magistrate poses the following questions for the opinion of this Court:

(1)  Whether I was correct in ruling that there was no “prosecutor” or “defendant” in proceedings instituted under section 17B of the Prevention of Bribery Ordinance, Cap 201 for the purpose of the Costs in Criminal Cases Ordinance, Cap 492;

(2)  Whether I was correct in ruling by this reason and in any event that the Costs in Criminal Cases Ordinance, Cap 492 did not apply generally in proceedings instituted under section 17B of the Prevention of Bribery Ordinance, Cap 201; and

(3)  Whether I was correct in ruling, in particular, that I lacked jurisdiction in entertaining an application for an award of wasted costs under section 18 of the Costs in Criminal Cases Ordinance, Cap 492 brought in the course of proceedings instituted under section 17B of the Prevention of Bribery Ordinance, Cap 201?

13.I have received submissions from Ms Peggy Lo on behalf of the Secretary for Justice as Appellant, and from Mr Egan acting in person as an interested party to these proceedings.  Mr Lee and Mr Szeto have also been present in court in person throughout the arguments as interested parties and have each indicated that they do not wish to add to the submissions made by Mr Egan, which they adopt.

The preliminary issue

14.Before I address the issues engaged by the substantive application, I need to deal with a preliminary point raised by Mr Egan which goes to the jurisdiction of this appeal.  He argues that the provision allowing a magistrate to state a case, namely section 105 of the Magistrates Ordinance, only permits the party making the application to apply to the magistrate to state a case “(w)ithin 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way…”.  Since there had never been any complaint, information or charge before the magistrate, he submits that the only basis upon which an application under section 105 could be triggered is if there was any other proceeding before him which he had power to determine in a summary way; and a section 17B application is not such a proceeding.  He relies on the majority judgments in Harknett v Venning (1983) HCMP 1345 of 1983, to the effect that an application under section 17A of the POBO is not a matter which a magistrate has the power to determine in a summary way, for the proposition that a section 17B application should be regarded in the same way.

15.Although Mr Egan acknowledges that section 17B(8)(b) of the POBO stipulates that proceedings before a magistrate under section 17B shall be deemed to be proceedings which a magistrate has power to determine in a summary way within the meaning of section 105 and 113(3) of the Magistrates Ordinance, he argues that the provision only deems section 17B proceedings to be ones which a magistrate has power to determine in a summary way for the purposes of an appeal: it does not deem the actual section 17B application to be a proceeding which a magistrate has power to determine in a summary way.  A fortiori, an application in relation to wasted costs, which application would be ancillary or collateral to the substantive section 17B proceeding, cannot be a proceeding which he has power to determine in a summary way either.  Therefore, he submits that the Appellant simply had no power to require the magistrate to state a case in relation to section 18 of the CCCO.

16.In my view this argument is misconceived.  The magistrate, on 28 and 30 December 2010, was scheduled to hear in chambers a contested application for the return of the Respondent’s travel documents.  The Respondent was at all times represented by counsel and solicitors.  He gave his ruling on 4 January 2011 when the Respondent was again represented by counsel and solicitors.  In my judgment, that ruling was plainly made in proceedings, albeit in chambers, which he had power to determine in a summary way.  Harknett v Venning, on the other hand, was concerned with a section 17A application made ex parte in writing by the Commissioner to a magistrate in respect of the surrender of a suspect's travel documents.  Liu J (as he then was), giving one of the majority judgments of the Court held, at p 5, as follows:

“Returning once more to section 17A of the Prevention of Bribery Ordinance: before the service of the issued notice, the suspect may be said to be involved, but in no way can he intervene or participate. At least prior to proceedings consequential upon the service of the issued notice, in acceding to the request of the ICAC Commissioner, a magistrate cannot be adjudicating in a summary way.

….. The learned magistrate was simply satisfied with the materials placed before him on the Commissioner's application under section 17A of the Prevention of Bribery Ordinance.” (emphasis added)

17.The emphasised part of Liu J’s judgment would suggest that a magistrate’s adjudication of proceedings consequential upon the service of the issued notice under section 17A (which would include a section 17B application) may well be different; for the very reason identified by Ms Lo that, unlike section 17A applications, section 17B proceedings are inter partes, albeit in chambers, and will require the magistrate after hearing argument to make a ruling either for or against the applicant.  As a matter of plain English, I cannot see how a magistrate can make a ruling for the return of a suspect’s travel documents at a contested hearing without it being a proceeding which he has power to determine in a summary way.

18.In my judgment, section 17B(8)(b) of the POBO merely deems, lest a decision like Harknett v Venning (which, I emphasise, relates only to section 17A applications) might suggest otherwise, that applications in chambers for the return of travel documents under section 17B shall be proceedings which a magistrate has power to determine in a summary way, within the meaning of that term as it is used in the appeal sections 105 and 113(3) of the Magistrates Ordinance.  It ensures that any suspect aggrieved by the refusal of a magistrate to return his travel documents, or by the conditions attached to an order granting the return of his travel documents, has recourse to an appeal court.

19.Accordingly, I reject Mr Egan’s argument that these proceedings are a nullity which the Appellant has no power to bring.  I turn now to the main argument engaged by this case stated, which is whether the magistrate was correct in ruling that he had no jurisdiction to make an order for wasted costs during proceedings under section 17B of the POBO.

The substantive issue

20.As the magistrate correctly determined, since there was at the time no complaint or information laid against the Respondent, the main issue in this appeal comes down to whether the Commissioner, by successfully applying for the surrender of the Respondent’s travel documents, can be said to have “institute(d) criminal proceedings” against him.  If he can, then the Commissioner is a “prosecutor” and, correspondingly, the Respondent is a “defendant”, within the meaning of section 2 of the CCCO.  If the Commissioner is a “prosecutor”, then he is a “party to the proceedings” within the meaning of section 2 of the Ordinance, in favour of whom a wasted costs award may be made.  If he cannot be said to have “institute(d) criminal proceedings” against the Respondent, then he is not a “prosecutor” and, therefore, not a “party to the proceedings” in favour of whom such an award may be made under the Ordinance.

21.In advancing her argument, Ms Lo relies heavily on the decision in So Wing Keung v Sing Tao Ltd & Another [2005] 2 HKLRD 11 that one must have regard to the nature of the underlying cause or matter in which the appeal is brought to determine whether the proceedings are criminal or civil.  She cites in particular the following passage in the judgment of Ma CJHC (as he then was), giving the judgment of the court, at 42F-H:

“In ascertaining the nature of the underlying cause or matter in which the judgment or order under appeal is brought, one must, I believe, adopt a flexible approach with some degree of common sense. The analysis should involve looking at the object and purpose of the relevant cause or matter. A cause or matter that has as its object or purpose the possible conviction of a person on a criminal charge is an a fortiori situation where the nature is without doubt criminal, but this is not the only situation.”

22.Ma CJHC had earlier expressly disagreed, at 42B, with the view that the nature of a cause or matter in the underlying proceedings could only be criminal if, in the words of Lord Wright in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 at 162, it is one “which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some imprisonment”.  He observed, at 42C-D:

“While no doubt the presence of underlying criminal proceedings where the relevant accused faces the possibility of a conviction on a criminal charge and of being punished for it, will certainly mean that the ‘cause or matter’ is criminal and not civil, this I believe merely to be an example (albeit a classic one) and not exhaustive.”

23.Ms Lo argues that in order for the Respondent to have been required to surrender his travel documents under section 17A, he had to have been “a person who is the subject of an investigation in respect of an offence reasonably suspected to have been committed by him under (the) Ordinance” within the terms of subsection (1).  Therefore, she submits that applying flexibility and common sense to the nature of the proceedings under section 17A of the POBO would suggest that proceedings had been instituted against the Respondent which were plainly criminal, even though no formal information or complaint had been laid against him.  She points out that in So Wing Keung the underlying proceedings were applications for search warrants under section 85 of the Interpretation and General Clauses Ordinance, Cap 1 (IGCO).  As Ma CJHC held, at 43E-F:

“Admittedly, there has been no formal accusation of any breach of criminal law and the consequences for the respondents of the s. 85 application, when carried out to its conclusion, was not their (or indeed, anyone else's) conviction. The only consequence of that application as far as the respondents are concerned was that search warrants were issued allowing the ICAC to search their premises. No criminal charge may ever be brought. Yet, as a matter of reality and common sense, the whole point of a s. 85 application is to further investigations into criminal offences. There is no other purpose.”

Accordingly, Ms Lo submits that the fact that there is no formal prosecution does not mean that proceedings, however preliminary, cannot be criminal proceedings: see Carr v Atkins [1987] 1 QB 963.

Discussion

24.Ms Lo’s submission is an attractive one, supported by formidable authority.  However, what I have to determine is whether the proceedings under section 17B (or, for that matter, section 17A) were “criminal proceedings” within the meaning of a specific Ordinance, the CCCO.  The issue in So Wing Keung was whether the Court of Appeal had jurisdiction to entertain an appeal against a decision of the Court of First Instance to set aside search warrants obtained and executed under section 85 of the IGCO, that decision being made pursuant to Order 32 rule 6 of the Rules of the High Court, Cap 4. The Court held that it had no jurisdiction to entertain the appeal because the appeal was not from a judgment or order of the Court of First Instance in a civil cause or matter.  The Court considered that the underlying section 85 proceedings were a criminal cause or matter from which an appeal did not lie to the Court of Appeal in its civil capacity.  Whilst I can readily understand the need for flexibility and common sense in deciding upon the underlying nature of a particular cause or matter for the purposes of determining whether it was one to which an appeal lay to the Court of Appeal in its civil jurisdiction under the Rules of the High Court, I have some diffidence in applying a rule of flexibility and common sense to the construction of a criminal statute.

25.It must be remembered that there is no general right to costs in criminal cases.  The CCCO delineates in specific terms the particular circumstances in which a costs order might be made in criminal proceedings.  If a party to proceedings cannot bring himself within a particular section of that Ordinance, he cannot obtain an order for costs.  Mr Egan has reminded me, by way of example, that in the Court of Appeal proceedings in the case of Secretary for Justice v Lam Tat Ming and Another (No’s 1,2 and 3) [1999] 3 HKC 769, the successful respondents had sought an order for costs upon the dismissal of a case stated brought by the Secretary for Justice.  The Court, at 809, considered it “an unhappy state of affairs that, in fact, there exists no power for this court to make an order for costs” under the CCCO in respect of appeals to the Court of Appeal by way of case stated.  Following this decision, the CCCO was duly amended in 2002 by the addition of sections 9A and 13A to make allowance for defence and prosecution costs in such appeals.  Further amendments were made in 2005 to cater for applications for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484: see sections 9B and 13B of the CCCO.

26.I am therefore called to construe a statute dealing with specific types of criminal proceeding in which costs orders may be made: if the specific type of criminal proceeding does not come within the Ordinance, an order for costs cannot be made. 

27.Accordingly, the question I must come back to in this case is whether the proceedings under section 17B (or 17A) of the POBO were criminal proceedings within the meaning of section 2 and 18 of the CCCO.  Ms Lo advocates that I adopt a flexible and common sense approach to the meaning of criminal proceedings in which there is no prosecution of a defendant in the generally accepted sense but where a suspect under investigation is either surrendering or applying for the return of his travel documents in a magistrate’s court.  Mr Egan counters that argument by saying that the Respondent had never been formally accused of anything nor was he facing any criminal charge.  He points out that the section 17B proceedings were appropriately described as ‘Miscellaneous Proceedings’ on formal court documents in the magistracy.  He submits that I should adopt a strict interpretation of the provision.

28.In addressing this question, the case which I have found most helpful is Customs and Excise Commissioners v City of London Magistrates’ Court [2000] 1 WLR 2020.  Given certain similarities with the present case, it is worth setting out the facts in some detail.  An application had originally been made to justices for access orders against three banks and a public limited company under paragraph 11(1) of Schedule 11 to the Value Added Tax Act 1994.  The matter had been set down for a half-day hearing at 2 pm on a particular date.  Solicitors acting for the four respondents then applied to the court for an adjournment, contending that a whole day would be required to hear the matter and that it would save unnecessary expense if all parties could agree to adjourn the half day hearing in advance.  However, those acting on behalf of the Customs and Excise Commissioners did not agree to the adjournment.  Accordingly, the hearing went ahead as scheduled and overran.  The court of three justices then adjourned the matter to a full day hearing.

29.At that stage, the four respondents applied for an order under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.  Regulation 3 is in these terms:

“(1) Subject to the provisions of this regulation, where at any time during criminal proceedings – (a) a magistrates’ court, (b) the Crown Court, or (c) the Court of Appeal is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs incurred by that party shall be paid to him by the other party.”

The application for costs was then adjourned to the same day on which the decision in relation to the access orders was to be made.

30.On that day, 24 May, the court (at that stage constituted by a single justice) granted the access orders and the respondents renewed their applications for costs.  On behalf of the Customs and Excise Commissioners it was argued that costs could not be awarded under regulation 3 since it was a regulation which only applied during criminal proceedings, and the proceedings before the court were not criminal proceedings.  The respondents, of course, argued that they were criminal proceedings and that the court thereby had the jurisdiction to make a costs order.  The court ruled, inter alia, that “…‘criminal proceedings’ included proceedings pursuant to applications for court orders since a precondition of making such an order was that [the court] had to satisfy [itself] that there were reasonable grounds for believing that a particular type of offence had been committed”.  Accordingly, the court made an order for costs in favour of the respondents.  The Customs and Excise Commissioners appealed to the Divisional Court by way of case stated against the justice’s order contending that the court had no jurisdiction to award costs against a party to the proceedings.

31.It is at this stage worth setting out the question posed for the opinion of the Divisional Court because it deals with the very question I have to address, albeit in the converse form.  The question posed was this:

“Was I correct in concluding that in respect of an application inter partes for access orders under paragraph 11(b) of Schedule 11 to the Value Added Tax Act 1994 I had jurisdiction under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 and section 19 of the Prosecution of Offences Act 1985 to award costs against a party to the proceedings?”

32.In answering that question, Lord Bingham CJ, giving the judgment of the Court, observed, at 2024H, that there was no definition of “criminal proceedings” in either the costs regulations or the Act.  However, he went on to hold, at 2025A-C:

“It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.

The Customs in this case submit very simply that the application for access orders made against the banks and the limited company on notice to the respondents fell well outside that characterisation of ‘criminal proceedings’. Although it is true that the respondents to whom notice was given were suspected of committing or having committed offences against the VAT legislation, no formal accusation had at that time been made against any of them on behalf of the state or any private prosecutor and there were no proceedings in being which could have led to the conviction or condemnation of any of the respondents.  It is true that an information was laid against the respondents after the making of this order and may well have been contemplated on 24 May, but the fact remains that there were no criminal proceedings in being against any of the respondents, let alone the parties against whom access orders were sought.”

33.In terms of its facts, the substantive proceedings before the justices, the costs legislation and the question posed by the case stated, the authority has some remarkable similarities with the case before me.  However, the authority is further helpful because Lord Bingham CJ dealt with an argument from one of the respondents which was very similar to the one advanced by Ms Lo in reliance upon the authority of So Wing Keung.  In resisting the appeal, counsel for the fourth respondent had relied on a provision in the Supreme Court Act 1981 to the effect that no appeal lies to the Civil Division of the Court of Appeal from any judgment of the High Court in any criminal cause or matter.  It was pointed out that the provision has been broadly interpreted so that proceedings concerned with obtaining evidence for a criminal prosecution or possible prosecution are criminal causes or matters within that definition. 

34.Lord Bingham CJ’s answer to that proposition, at 2025 E-H, was:

“Section 18(1)(a) of the Act of 1981, however, is to my mind a provision which has a purpose wholly unrelated to section 19 or regulation 3. Moreover, it refers to ‘a criminal cause or matter’ and not to ‘criminal proceedings’. I would accept the argument advanced by Mr Barlow for the fourth respondent to this extent: that if the order made by the justice in this case had been made by the High Court and if the question had been whether an appeal against that decision lay to the Civil Division of the Court of Appeal, I could see very powerful grounds for concluding that it was a decision in a criminal cause or matter within the statutory definition against which an appeal would not lie to the Court of Appeal, Civil Division. But that, as I think, is an answer to a question which is inappropriate to ask. The correct question is whether the Customs’ application under paragraph 11 of Schedule 11 to the Act of 1994 was a criminal proceeding. Mr Barlow argues that it was. He submits, first, that it was a proceeding and, secondly, that it was criminal. Even if it be accepted that it was a proceeding, it is in my judgment quite plain that it was not a criminal proceeding for the reasons given by the Customs. Although the respondents were suspected of criminal offences, no formal accusation had been made against any of them on behalf of the state or any private prosecutor and there were no proceedings in being which could have led to the conviction of the respondents of any breach of the criminal law or to their condemnation. In my judgment the only answer which can be given to the question posed is ‘No’.”

35.I respectfully agree.  If I were sitting in the Civil Division of the Court of Appeal and had to decide whether an appeal to the Court was from a civil cause or matter or from a criminal cause or matter so as either to found or to preclude appellate jurisdiction under section 13 of the High Court Ordinance, Cap 4, I might well have found that proceedings with an underlying section 17B (or 17A) application root derived from a criminal cause or matter.  However, it is not necessary for me to decide that question: I am concerned with whether the applications under section 17B (or 17A) of the POBO were criminal proceedings within the meaning of an Ordinance dealing with costs in criminal cases. 

36.I note that in Chan Mei Yiu Paddy v Secretary for Justice [2008] 5 HKLRD 507, in relation to an argument concerning the jurisdiction of the High Court on judicial review dealing with a criminal cause or matter, Cheung JA held, at 514:

“My view is that although the judicial review is in respect of a criminal cause or matter, it is not a ‘criminal proceeding’ in the technical sense. If it were, that would restrict the right of a person who is not charged with a criminal offence to apply for a letter of request. The challenge by the judicial review is directed towards a criminal cause or matter but this will not turn it into a criminal proceeding.”

It seems to me that criminal proceedings in Cheung JA’s “technical sense” would conform to what Lord Bingham CJ considered the “general understanding” of the term.

The answers to the question posed by the case stated

37.The CCCO is a criminal statute which falls to be strictly construed.  In my judgment neither the section 17A application of 17 November 2010 nor the section 17B application of 30 December 2010 (or 28 December 2010) under the POBO amounted to “criminal proceedings” within the meaning of the CCCO.  Therefore, the magistrate was right that he had no jurisdiction to make a wasted costs order against the Respondent’s legal representatives.  I would answer each of the questions posed by the case stated with the answer “Yes”.

Costs

38.In the event that I were to answer the questions posed by the case stated in the Respondent’s favour, Mr Egan made an application for costs.  Section 9A of the CCCO provides for costs awards to defendants where the Court of Appeal dismisses an appeal by way of case stated.  It does not, however, appear to cover the position where a judge of the Court of First Instance dismisses such an appeal.  Given that sections 9A and 13A came about in order to remedy an apparent lacuna in the costs provisions (see para 25 supra), I would assume that the limitation of costs awards to appeals by way of case stated before the Court of Appeal only was intentional on the part of the legislature.  Accordingly, I am of the view that I have no jurisdiction to entertain such an application.  Furthermore, I do not consider that an interested party, who is plainly not a defendant within the meaning of sections 9A and 2 of the CCCO, would be entitled to his costs even if I had such jurisdiction.

39.Ironically, Mr Egan’s application falls foul of the very strictness of interpretation of the CCCO which he has urged upon me and I have resolved in his favour on the substantive issue. 

40.And even if I were wrong on both issues, I would not have made such an order for costs in the exercise of my discretion.  Much time was taken up at the hearing before me with the preliminary jurisdictional issue.  This had necessitated Ms Lo in filing a supplementary written submission in order to address the matter and, since it was an argument which went to the very jurisdiction of the proceeding before me, it has required me to deal with it.  As appears from para’s 14-19 supra, I found the argument misconceived.

41.Accordingly, I make no order as to costs.

Ms Peggy Lo, SPP of the Department of Justice, for the Appellant

Mr Kevin Egan, Interested Party, in person

Mr Dickson Li, Interested Party, in person

Mr Y T Szeto of Messrs Y T Szeto & Co, Interested Party, in person