Paul Y General Contractors Ltd v. HKSAR

FACC Nos 4 and 5 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS4 AND 5 OF 2012 (CRIMINAL)

(ON APPEAL FROM HCMA NO 922 OF 2009 AND NO 102 OF 2010)

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FACC No 4 of 2012

Between :

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FACC No 5 of 2012

Between :

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DECISION ON COSTS

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Mr Justice Tang PJ:

1.These appellants Paul Y General Contractors Ltd and Lucky Engineering Company Ltd were each convicted as proprietors[1] and as contractors[2], in respect of certain industrial accidents.  Their appeals against their convictions as proprietors were allowed but their conviction as contractors affirmed.

2.The appellants apply for the costs of their successful appeals. The respondent opposes the application. It said that there is ample evidence to support a verdict of guilty.  But our judgments made it clear that the prosecution of these appellants as proprietors was misconceived.  There is no good reason to deprive them of the costs attributable to the proprietor charges.  But because they were correctly convicted of the contractor charges it is necessary to apportion the costs.  The respondent suggests that no more than 25% of the costs should be awarded to the appellants.  Counsel for Paul Y asks for one third of its costs at trial; one third of its costs on appeal to the High Court; half of its costs on the application for a certificate; all of its costs on the application for leave and half of its costs before this Court.  Counsel for LuckyEngineering made no specific suggestion.  Apportionment is best made based on an estimate of time and effort spent.  On that basis, we believe these appellants should be paid half of their costs in this court as well as in the application for leave.  As for the courts below, doing the best we can, we believe the suggestions made on behalf of Paul Y seem fair and would order accordingly.  Such costs to be taxed unless agreed.

Written submission by Mr Daniel Hui, instructed by Ng AuYeung & Partners, for the appellant in FACC4 of 2012

Written submission by Mr Alexander S King SC, Mr Adrian J Halkes and Ms Shirley C Hung, instructed by Clyde & Co, for the appellant in FACC 5 of 2012

Written submission by Mr Robert YH Pang SC, instructed by the Department of Justice, and Ms Winnie Mok, Public Prosecutor of that Department, for the respondent