ATTORNEY GENERAL v. A DEPUTY DISTRICT COURT JUDGE

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HEADNOTE

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                    The power to award costs in criminal cases depends entirely upon statute so that the District Court has no inherent jurisdiction to make such an award.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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JUDGMENT

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1. This is a motion for judicial review by the Attorney General for an order of certiorari to quash an order made by Deputy Judge de Souza in the Shatin District Court on the 14th November 1990, when he made an order for the Crown to pay two days' costs to the defendant in a criminal trial arising from an application by the Crown for an adjournment. Leave for judicial review was granted by Bokhary J. on the 20th February 1991.

2. The Deputy Judge was not represented before me at the hearing.

3. The facts reveal that the defendant in the criminal proceedings, Mr Wong Chiu-yuen, appeared for trial on the 14th November 1990 before Deputy Judge de Souza in respect of a number of charges under the Theft Ordinance, Cap.210. The case was set down for hearing for five days.

4. During the course of the evidence of the first prosecution witness, counsel for the Crown realised that some of the documents to be produced had not been translated and certified. As a result, an adjournment was sought for the translation and certification work to be done. Although the application was opposed by the defendant, the Deputy Judge made an order for a trial de novo with an order for the Crown to pay to the defendant two days' costs to be assessed by the Registrar if not agreed.

5. Mr Kwok, who appeared for the Crown submitted that jurisdiction with regard to costs is entirely a creature of statute and cannot be awarded at common law. In support of this proposition, he referred me to two passages from the Privy Council decision in Garnett v. Bradley [1878] AC 944. First at pp.953 and 954 Lord Hatherley said :-

" .....The Common Law Courts were obliged to go back to a legislative enactment in order to arrive at their power, or rather their duty, for power they had none, of dealing with costs. The Statute of Gloucester, which was passed in the 6th Edw. 1, is the foundation of the Common Law jurisdiction as  to costs, and that statute bound the Common Law Judges, so that they could not in any way depart from the rule that was laid down, that costs followed the event."

The second citation appears at p.962 where Lord Blackburn had this to say :-

"First of all I will observe that before the Judicature Acts came into operation there was a rule as to costs in Courts of Common Law; costs in Equity we are not concerned about. Costs in Courts of Common Law were not by Common Law at all, they were entirely and absolutely creatures of statute. There had been statutes passed at different times giving costs, some in one case and some in another, the earliest being the Statute of Gloucester, passed many centuries ago, which gave costs, if I recollect rightly, to demandants who recovered damages in a real action, which they had not had before. Subsequent statutes were passed at different times giving a Plaintiff a right to recover costs in any action, and there were other statutes passed at different times upon the subject of costs in the Common Law Courts. I think the first that gave costs to the Defendant was as late as James 1., and there were several other statutes giving costs, but all those statutes went upon one principle throughout. The result was, that, as a general rule, in every case in Courts of Common Law the party who succeeded got his costs, whether he was Plaintiff or Defendant, whether he succeeded by a verdict or upon demurrer. I say the general rule established by all those numerous statutes (for there was no one statute which laid it down) was that the successful party got his ordinary taxed costs; in other words, that the costs followed the event, and that the party who was successful had them as a matter of right."

6. Mr Kwok also cited A.G. v. Ip Wai Kwong [1982] HKLR 93 where Addison J. held that the Court had no inherent power to award costs in criminal cases, its power being entirely dependent upon statute.

7. I was then invited by Mr Kwok to compare the position in England, although the scheme there is quite different from that in Hong Kong and cannot, therefore, be applied here. The Costs in Criminal Cases Act 1973 consolidated the law with regard to costs in criminal cases and included specific provisions for awards of costs to be made in the Magistrates Courts, the Crown Court, the Divisional Court and the Court of Appeal. This Act has since been repealed and replaced by the Prosecution of Offences Act 1985 in which specific provisions for costs are set out in Part II of the Act.

8. In respect of criminal proceedings in Hong Kong, specific provisions have been made for awards of costs in the Magistrates Ordinance, Cap. 227 and the Criminal Procedure Ordinance, Cap. 221. In particular, s.20(2)(b) of the Magistrates Ordinance provides that where an adjournment of a hearing is caused by the default of the complainant, the complainant may be ordered to pay the defendant's costs not exceeding $5,000.

9. The District Court was established in 1953 by the District Court Ordinance, Cap. 336. The general jurisdiction of the court is set out in s.3 which reads :-

There are no provisions in the Ordinance that relate to costs except s.43 which deals with costs on the transfer of cases from the High Court to the District Court and vice versa.

10. However, two sections in the Criminal Procedure Ordinance also apply to proceedings in the District Court. They are s.34 which contains a provision for costs in respect of a witness summons and s.73A where power is given to award costs in the case of an acquittal.

11. By s.75(1) of the District Court Ordinance, the District Court has similar jurisdiction and powers to the High Court in a trial on indictment. The High Court has power to award costs against a person convicted of an indicatable offence under s.72 of the Criminal Procedure Ordinance which power can therefore be invoked by the District Court under s.75(1) of the District Court Ordinance.

12. Mr Kwok also referred to s.9(3) of the Criminal Procedure Ordinance which provides, where relevant, as follows :-

"9.   (3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment ... applicable thereto, the practice and procedure in all criminal causes and matters ... shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England."

He submitted and I accept his submission that s.9(3) does not confer jurisdiction upon the District Court under s.75(1) as the power in contrast to the discretion to award costs goes to jurisdiction and is not a matter of practice and procedure.

13. The provisions with regard to costs in civil cases set out in s.52A of the Supreme Court Ordinance and O.62 of the Rules of the Supreme Court are separate from criminal proceedings and do not confer jurisdiction for costs.

14. Having considered the authorities, I am quite satisfied that the power to award costs in criminal cases depends entirely upon statute. As there is no provision in the District Court Ordinance to make an order for costs against the prosecution on the occasion of an application for an adjournment, the order made was null and void. In making the order for costs, the Deputy Judge exceeded his jurisdiction with the result that there will be an order of certiorari to quash the order. No order for costs was sought by the Crown upon this motion.