HKSAR v. Hon Ming Kong and Others

CACC 272/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2011

(ON APPEAL FROM DCCC NO. 661B OF 2006)

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BETWEEN

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.In these applications for leave to appeal against conviction and sentence, we delivered judgment on 28 March 2014.  We made costs orders nisi that, save as to D2’s and D3’s applications as to sentence in respect of which we made an order nisi so that there be no order as to costs, the respondent’s costs of the applications be paid by the applicants, to be taxed if not agreed.

2.We also said that we wished to be addressed on the question whether this Court is empowered to make an order in respect of the costs of the trial and, if so, why an order in favour of the respondent in respect of those costs should not be made.

3.We have now received written submissions from all parties, both as to the orders nisi and as to the issue which touches upon the costs of the trial.

The appeal costs

4.The power to order costs as against an unsuccessful applicant for leave to appeal against conviction and/or sentence is conferred by section 13 of the Cost in Criminal Cases Ordinance, Cap 492 (“the Ordinance”):

“ Where a defendant unsuccessfully-

(a) appeals to a judge from any conviction, order or determination of a magistrate; or

(b) appeals to the Court of Appeal against-

(i) his conviction of an offence or any other finding or verdict made in respect of him; or

(ii) sentence; or

(c) applies to the Court of Appeal for leave to appeal against any of the matters referred to in paragraph (a),

and the judge or the Court of Appeal is satisfied that the appeal or the application, as the case may be, is or was without merit, the judge or the Court of Appeal may order that costs be awarded to the prosecutor.’

5.Each applicant takes a number of points in opposition to the orders nisi; some are common to all three applicants; others are specific to the result in each of their cases.

6.It is a common theme of the argument that convictions on some of the charges were set aside: three charges out of 10 in the case of D1; one (by concession) out of 10 in the case of D2; and four out of six in the case of D3.  It follows, according to the argument, that it would be inappropriate for the prosecution to have all its costs in relation to any one of the applicants.

7.It is then said that the applications cannot be said to have been meritless, a test to be distinguished from mere lack of success.  

8.We take the view in relation to those charges in respect of which the convictions remain that, with the exception of those in respect of which error - though not fatal to the conviction - was made by the judge as to admissibility of a notebook (a point which fell within a short compass), the applications were indeed meritless.

9.Our attention has been drawn by counsel for the respondent to the decision in R v Harrison [1993] 14 Cr App R (S) 419, which addressed a first instance order for costs in favour of the prosecution, that where there are several defendants it is usually appropriate when making orders for costs to look to see what would be a reasonable estimate of costs if each defendant was tried alone; and the contention put to us, correctly in our view, is that in so far as it may be appropriate to make an order for costs against the applicants, the order should be proportionate to the extent that the prosecution appeal costs can properly be laid at their respective doors. The application of that approach is, in a case such as the present, not susceptible to precise calculation.

10.Our attention is also drawn by counsel for D2 to a decision of the Appeal Committee of the Court of Final Appeal in Liu Sik Keung v HKSAR FAMC No 41 of 2003, unreported, 10 November 2003, where it was said: “In a criminal case it is necessary to ensure that the Appeal Committee’s jurisdiction to order costs against an unsuccessful leave applicant is not exercised in such a way as to give rise to undue deterrence against seeking leave to appeal.”

11.That comment was made in the context of a statutory provision conferring power to order costs upon the refusal of an application for leave, where a process exists to filter out applications.  In that case the application had not been filtered out and had proceeded to a hearing.  We do not read those comments as laying down a rule that in the application of section 13 of the Ordinance, this Court is prima facie not to order costs in the case of an unsuccessful application.

12.Whether to make an order where an unmeritorious case has been advanced will depend on all the circumstances.  Where, as in this case, a nine-day hearing (and the extensive preparation for it) has been initiated upon a basis which in large part is unmeritorious and where there is no suggestion that the initiator is other than well-placed to bear a costs order, it is difficult to see upon what basis the public purse should not be compensated.

13.What we have done is to assess broadly the proportion of the combined applications attributable to each applicant and, in each case, to render a deduction therefrom for the limited success of that applicant in relation to the appeals allowed, according to the rough proportion of time attributable to the grounds resulting in that limited success.

14.In our estimation, D1’s applications account for something in the region of 70% of the written and oral arguments, given that in the case of D3, much of D1’s contentions were adopted.  D1 succeeded in relation to three charges: the merits of the application in relation to charge 10 were conceded at the outset; and the notebook point, which enured to his benefit in relation to charges 4 and 5, constituted but a small part of the whole.  The vast part of his case upon the application was an unmeritorious contest of the judge’s reliance on the testimony of PW1 and an unmeritorious argument in relation to the Mainland witnesses.  He failed in relation to sentence.

15.Accordingly, we order that D1 shall pay 60% of the respondent’s costs of the applications (as a whole) for leave to appeal against conviction, and shall pay the costs of D1’s application for leave to appeal sentence; these costs to be taxed if not agreed.

16.Of the time devoted to the whole, we attribute 10% to 15% to D2.  D2 succeeded as to one charge (charge 10), but on a point conceded by the respondent before the hearing. No orders as to costs are made in relation to his application for leave to appeal against sentence since, in that aspect, he succeeded but we order him to pay 10% of the respondent’s costs of the applications for leave to appeal against conviction, to be taxed if not agreed.

17.In relation to D3, the point is well made on her behalf that she succeeded in relation to a substantial number of the convictions, though we saw no merit in the arguments on charges 1 and 11.  We agree, and order accordingly, that in her case there be no order as to costs.  There is some suggestion in the arguments on her behalf that she merits an award of costs in her favour but those arguments are not crystalised into an application to that effect and, in any event, we are satisfied that such an order would not be warranted in her case.

Costs of the trial

18.We were dismayed that no application had been made in behalf of prosecution, as against any of the applicants, for the prosecution costs of the trial; and, in this light, we said in our judgment that we wished to be addressed on the question whether this Court is empowered to make a costs order by which the public purse might be compensated for the costs of the trial. 

19.We have received helpfully analytical submissions on this issue and we are persuaded that we have no jurisdiction to make such an order.

20.The starting point is that there is no power inherent in a court to award costs in criminal cases; the power, if it is to be conferred, must be conferred by statute: Attorney General v Ip Wai-kwong [1982] 93 at 96.

21.Part II of the Ordinance confers powers to award defence costs, including the power in the Court of Appeal to “order that costs be awarded to the defendant” where the Court of Appeal allows an appeal to which this section applies.

22.The predecessor to section 9 was section 83 XX of the Criminal Procedure Ordinance, which, in the sub-section relevant to the present point, reads as follows :

“ (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.”

23.It is common ground between the parties to the present proceedings that the same breadth of power as was stipulated by section 83 XX(4) is contemplated by “costs” in section 9(1) of the Ordinance.  It would be odd were it otherwise.  A convicted defendant is not in a position in the court below sensibly to apply for costs after conviction and section 19 of the Ordinance, which confers the right to appeal a costs order made in the court below, restricts that right to the situation “where a court or judge has made an order that costs be awarded to any of the parties”, so if no order is made in the court below, a defendant who succeeds upon appeal in overturning his conviction would, absent the suggested breadth of section 9(1), be bereft of any remedy as to trial costs.

24.It is said by the respondent that there is no warrant for reading section 13 differently more narrowly than section 9.  With respect we do not agree.  The power in section 13 must be read contextually.  That context has two relevant features for present purposes.  First, it presupposes a conviction in the court below at which stage it was open to the prosecution to seek costs.  Second, the setting for an order for costs under section 13 is not the conduct of the defence in the court below but, expressly, whether the appeal itself (or the application itself, as the case may be) is or was without merit.  It is, in our judgment, implicit in that context that the costs to which reference is made by section 13 are the costs of the appeal or the application, as the case may be.

25.As against this interpretation, the respondent prays in aid the provisions of section 15(a) of the Ordinance.  This stipulates that: 

“ In any criminal proceedings –

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to the court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto: ..”

26.The argument is that the phrase “including any proceedings preliminary or incidental thereto” includes the trial, since the trial is preliminary and incidental to the appeal.

27.We think not.  A trial is not preliminary or incidental to such appeal as may follow.  A trial does not inevitably lead to an appeal.  Something incidental to a process appertains to, or is an adjunct of, that process.  So, in the present context, a hearing for directions for the conduct of the appeal will, for example, be a proceeding preliminary or incidental to the appeal, but the trial is not.  So much should also be evident from an examination of the terms of the repealed section 83 XX(4) of the Criminal Procedure Ordinance to which we have referred; if a natural reading of “proceedings preliminary or incidental thereto” contemplated the trial below, there would have been no need for the draftsman to add the phrase “or in the court of trial or before a magistrate.”

28.Finally, our attention has been drawn to section 17 of the Ordinance:

“ Where at any time in the course of criminal proceedings the court or judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, in order that all a part of the costs incurred should be paid to the first-mentioned party to the proceedings by the other party to the proceedings.”

29.The respondent submits that this Court has the power to invoke that provision in respect of the prolix and unsatisfactory conduct of the trial on the part of one or more of the applicants.

30.Issue is taken as between the parties as to the width of the provision; in other words, to what manner of conduct the power is directed.  It is not necessary for us to determine that issue in this case.  That is because we do not think that section 17 can have been intended as a tool in the hands of the appellate court in respect of proceedings in the court below.  In our judgment “the proceedings” to which section 17 refers are the proceedings before the tribunal which is asked to exercise the power.

31.Accordingly, no order is made as to the costs of the trial.

Mr Jonathan Caplan QC, Mr John Dunn (on fiat), Mr David Leung SADPP & Miss Kasmine Hui PP, of the Department of Justice, for the Respondent

Mr Eric Kwok SC, Miss Maggie Wong & Miss Vivian W. H. Ho, instructed by Simon C. W. Yung & Co., for the 1^st Applicant (D1)

Mr Benson Tsoi, instructed by Hau Lau Li & Yeung, for the 2^nd Applicant (D2)

Mr Edward Fitzgerald QC, Mr Eric Kwok SC, Miss Maggie Wong & Miss Vivian W. H. Ho, instructed by Simon C. W. Yung & Co., for the 3^rd Applicant (D3)