HKSAR v. Liu Bo

CACC 19/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO. 19 OF 2010

(ON APPEAL FROM DCCC NO. 669 OF 2008)

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BETWEEN

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REASON FOR DECISION

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BACKGROUND

1.After a trial which lasted for 91 days, the 2^nd applicant, together with three other defendants, was convicted of an offence contrary to section 72 of the Shipping and Port Control Ordinance, Cap.313 and sentenced to 2 years and 4 months’ imprisonment.  His conviction and sentence were subsequently quashed by the Court of Appeal which also ordered the respondent to pay his costs of the trial and of the appeal.

2.The taxation of the 2^nd applicant’s bill was set down to be heard before me.  Initially two days were reserved and the taxation was fixed to be heard from 25 April to 26 April 2013.  In March 2013, the parties informed this court that the initial estimation of two days was on the low side and as a result, three more hearing days in October 2013 were reserved for the taxation hearing.

3.The parties’ estimation in March 2013 proved to be correct.  By the end of the first two days of the taxation hearing, only around half of the 2^nd applicant’s bill (for costs incurred up to 10 June 2009) had been taxed. 

4.In order not to wait for another 6 months before he gets paid by the respondent of his taxed costs, the 2^nd applicant applied for the issuance of an interim certificate before the matter was adjourned.  This was opposed by the respondent on the ground that this court has no jurisdiction to do so.  Having heard parties’ submissions, I acceded to the 2^nd applicant’s request and told parties that I would give my reasons for doing so in writing, which I now do.

DISCUSSION

The Costs in Criminal Cases Ordinance

5.In Order 62 of the Rules of the High Court (Cap.4A), issuance of interim certificate is governed by rule 17 thereof.  Rule 17(1) provides that:

“A taxing master may from time to time in the course of the taxation of any costs by him issue an interim certificate for any part of those costs which has been taxed.”

6.However, it is undisputed that Order 62 rule 17 has no application to this taxation because the bill in question relates to a criminal case.  The taxation is governed by the Costs in Criminal Cases Ordinance (Cap.492) (“the Ordinance”) instead.

7.Ms Chan for the respondent argued that since no equivalent provision of O.62 r.17(1) may be found in the Ordinance or in the Costs in Criminal Cases Rules (Cap.492A) (“the Rules”), the court has no jurisdiction to issue interim certificates. 

8.Mr Frost, on the other hand, submitted that rule 7(4) of the Rules (“rule 7(4)”) gives this court the necessary jurisdiction.  The said rule provides that:

“Having taxed the costs payable to the claimant, the taxing authority must give notice to the claimant of the costs allowed and payable by virtue of this rule.”

9.Mr Frost submitted that this court has indeed “taxed the costs payable”, even though only part of such costs have been so taxed. Therefore, he said, rule 7(4) covers the present situation. 

10.It seems that Mr Frost was treating the notice under rule 7(4) as the certificate for costs under Order 62.  I understand that Ms Chan did not really dispute against that.  What she argued was that the first sentence of rule 7(4) only means “having completely taxed the costs payable…”.  In other words, a rule 7(4) notice is akin to a final certificate under Order 62 rule 17A.  Under the said rule 17A(1), a taxing master shall, after the conclusion of taxation proceedings before him, issue a final certificate specifying the amount of taxed costs and the amount of the prescribed taxing fee payable.

11.In rule 7(4), there is no stipulation that the notice could only be issued upon the conclusion of taxation proceedings.  I therefore accept Mr Frost’s argument and reject Ms Chan’s restrictive interpretation of the said rule. While the court is still in the course of taxing the 2^nd applicant’s bill, certain parts of the said bill have indeed been taxed.  I therefore come to the conclusion that the court is entitled to issue a notice pursuant to rule 7(4) as far as the costs already taxed are concerned.  

Inherent jurisdiction of the court

12.As his fall-back position, Mr Frost submitted that even if the Ordinance does not provide for the issuance of interim certificates, this court should have inherent jurisdiction in doing so. 

13.In the event I am wrong in my interpretation of rule 7(4), I agree with Mr Frost that the court indeed has such jurisdiction.

14.In Re Hawkins Development Limited (HCCW 215/2007, unreported, 18 December 2009), the issue was whether there was a procedural lacuna in that there is no power under Order 62 rules 21 to 21C for the court to order an interim payment of costs which in the opinion of the court approximates the costs that would be allowed on taxation at the provisional taxation or at a taxation hearing.  Kwan JA found that there was indeed a procedural lacuna but such a lacuna could be remedied by the exercise of inherent jurisdiction of the court.  In paragraph 18 of the Decision, her Ladyship had this to say:

“…Inherent jurisdiction may be exercised to control the process of the court when it is just and equitable to do so, even in respect of matters which are regulated by statute or by rules of court, so long as this could be done without contravening any statutory provision.” (emphasis added)

15.Hence, despite the fact that the Ordinance and the Rules have together provided a statutory scheme for the law and practice of matters relating to costs in criminal cases, it does not stop the court from exercising its inherent jurisdiction if it is just and equitable to do so.  Having said that, the court should be careful in exercising such jurisdiction.  Her Ladyship’s warning in paragraph 26 of the said Decision should be borne in mind:

“In my view, the court should act with circumspection in the exercise of this inherent power, as detailed and precise provisions have been made to deal with taxation of costs in Order 62. This inherent jurisdiction should only be exercised to deal with cases that genuinely come within a procedural lacuna, and that the circumstances are such that would merit intervention of the court to do justice between the parties or prevent abuse.”

16.In my view, if rule 7(4) actually does not cover the situation where the subject bill is only partly taxed, there is a procedural lacuna in this regard. As aforesaid, there is no reason why the claimant of costs would have to wait until the completion of taxation of the whole bill before he is paid for the costs which have already been taxed, especially when the taxation hearing has to be adjourned part-heard for a long period of time.  In my judgment, the 2^nd applicant’s being kept from the money to which he is entitled amounts to injustice which this court should intervene.  The issuance of an interim certificate would not contravene any statutory provision in the Ordinance or in the Rules.  I am thus satisfied that the criteria for the exercise of inherent jurisdiction referred to by Kwan JA are met.

17.Indeed, Ms Chan was unable to explain why the Ordinance or the Rules should deliberately leave out the court’s power to grant interim certificates.

18.Ms Chan has also very fairly informed this court that in fact this is not the first time when an interim allocator was granted in a taxation of costs in criminal cases.  It had been issued in HKSAR v Yip Kim Po (HCCC188/2008).  She told me, however, that the interim allocator was granted upon the consent of the Department of Justice in that case.  Be that as it may, this reinforces my view that this court must have jurisdiction to grant interim certificates in taxation proceedings relating to criminal cases.  

CONCLUSION

19.I therefore granted an interim certificate in respect of the costs of the 2^nd applicant incurred up to 10 June 2009 which have either been taxed or agreed between the parties.

Mr S Frost, Law Costs Draftsman, instructed by Messrs Holman Fenwick Willan, solicitors for the 2^nd applicant

Ms V Chan, Senior Public Prosecutor of the Department of Justice, for the respondent