HKSAR v. Tsang Pui Yu, Shirlina

CACC 349/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 349 OF 2013

(ON APPEAL FROM DCCC NO 326 OF 2013)

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DECISION ON COSTS

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Hon McWalters JA (giving the decision on costs of the Court):

Introduction

1.The applicant appealed her sentence of 50 months’ imprisonment for the offence of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.  Her appeal was heard on 27 March 2014 and on 3 June 2014 we allowed the appeal, set aside the District Judge’s sentence and in substitution for it sentenced the applicant to 46 months’ imprisonment.

2.On 26 September 2014 we received a letter from the applicant’s then solicitors, who had been her solicitors on the appeal, applying for the costs of the appeal.

3.We directed that this application should be determined by written submission and that the applicant’s submission should contain an explanation of why the application was not made timeously.  The papers having now been received from both parties, this is our decision on the application.

Discussion

4.This Court has previously emphasized the importance of an application for costs being made upon the judgment of the Court being pronounced[1]. Some leeway will always be allowed where the judgment of the Court is reserved and handed down at a later date.  However, this leeway is not to be abused and applicants are expected to make their applications within days, not weeks, and certainly not months, of the judgment being pronounced.  Unacceptable delay which is not satisfactorily explained may result in the application being refused.

5.The explanation provided by the applicant through her new solicitors, whom she only engaged on 5 December 2014, is that she was never informed by the solicitors acting for her on appeal that she had a right to apply for the costs of the appeal.  She says she only learnt of this right sometime in September 2014 whilst serving her sentence.  The respondent does not challenge the applicant’s explanation and does not oppose the application for costs of the appeal.

6.We accept the explanation of the applicant and, therefore, notwithstanding the substantial delay in her making the application we are willing, exceptionally, to entertain it.    

7.The facts of the case are set out in our appeal judgment and we shall not repeat them here.  In the Perfected Grounds of Appeal there were, in reality, only two grounds of appeal.  The first ground complained that the judge’s starting point was too high and we rejected this ground.  The second ground of appeal complained that the judge had not given a specific discount for the restitution made by the applicant.  We accepted that this was so and in recognition of the applicant’s act of restitution we granted her a discount of 4 months’ imprisonment from the sentence imposed by the judge.

8.It follows that, as a matter of principle, the applicant is entitled to certain of her costs as she did enjoy some success on her appeal and had to exercise her right of appeal in order to obtain the benefit of a proper sentence.  That said, she failed in her primary ground of appeal which absorbed most of the Court’s time at the hearing of the appeal.  The success of her secondary ground of appeal resulted in a reduction of her sentence by only four months.  In these circumstances we are not minded to award her all her costs. We order that the applicant receive 50% of the costs of appeal, to be taxed if not agreed.  

Written submission by Mr Francis Lo SADPP, of the Department of Justice, for the respondent

Written submission by Mr Tong Ming, instructed by S.H. Leung & Co, for the applicant

[1] See R v Kwok Moon Yan & Anor [1989] 2 HKLR 396.