NG KAM MAN v. R.

HIGH COURT

(Criminal Case No. 83 of 1994)

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D E C I S I O N

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1. This is an appeal by the Attorney General against the order of Master O'Donnell made on 15th March 1996, giving an extension of seven days for the applicant, Mr Ng Kam Man, to file his bill of costs.

2. The applicant was awarded his costs by the Court of Appeal upon his successful appeal to have his conviction quashed. That was made on 20th December 1994. After that Order, there had been some negotiations between the applicant and the Attorney General as to the possibility of agreeing to a figure without going to taxation. There had also been some delay on the part of the applicant in drafting the bill of costs and giving a breakdown of the figures to the Attorney General. However, in the light of the correspondence between the parties, I do not regard such delay as undue or substantial or in any way inexcusable.

3. What happened was that on 25th January 1996, the Attorney General issued a summons under O.62, r.22 of the Rules of Supreme Court requiring the applicant to proceed with taxation. Upon hearing the application, Master Jones made an order requiring the applicant to proceed with taxation within 21 days thereof. That Order was made on 12th February 1996. It is not disputed that the time for complying with that Order was 4th March 1996. This was not done until 5th March 1996, one day after the expiry of the period. The explanation given was that the solicitors for the applicant had miscounted one day. I accept this expalnation.

4. The applicant applied to the learned Master for an extension of time and the learned Master gave seven days extension. The Attorney General is not satisfied with that Order and now appeals, arguing that the court has no jurisdiction to extend time. The main submission is that under O.62, r.22, an order of the court requiring payment of the cost was discharged for non-compliance with the rules upon there being no notice of appointment served in accordance with the rules and no agreement between the parties on the amount.

5. Counsel for the Attorney General submits that that is a mandatory provision and the order shall be wholly discharged. He admits that there was no authority on this point, this rule being unique in Hong Kong. However, he argues that by operation of law, i.e. r.22, the order awarding costs had been discharged and the court had no jurisdiction to grant any extension. He argues that r.16, giving a general power to the taxing master to extend time, cannot be interpreted so that it is inconsistent with r.22 or rendering r.22 nugatory.

6. Counsel for the applicant submits that there is no inconsistency between r.16 and r.22. He argues that both r.16 and r.22(2) allow for the extension of time. The applicant was only one day late and there was in fact an appointment obtained for taxation and the bill was subsequently served on the Crown. Counsel also relies on the general provision giving the court jurisdiction to extend time under O.3, r.5.

7. Order 62, r.22(2) provides as follows:

"If, within the period ordered by the Taxing Master or any extension thereof granted by a Taxing Master, notice of appointment to tax has not been served in accordance with r.21 and the amount due has not been agreed between the parties, the order of the court requiring payment of cost shall thereupon be wholly discharged."

8. Order 62 r.16 provides as follows:

"(1) A Taxing Master may -

a) extend the period within which a party is required by or under this order to begin proceedings for taxation or to do anything in or in connection with proceedings before that Master.

(2) Where an order of the court specifies a period within which anything is to be done by or before a Taxing Master, then unless a court otherwise directs, the Taxing Master may from time to time extend the period so specified on such terms, if any, as he thinks just.

(3) the Taxing Master may extend any such period as is referred to in the foregoing provisions of this rule although the application for extension is not made until after the expiration of that period."

9. In my view, there is indeed a built-in power in r.22(2) to extend time for the service of the notice of appointment to tax and under r.16, that power can be exercised after the expiration of the period. I do not think there is any inconsistency between r.16 and r.22. If a party has been awarded cost by a court, he has a right to such cost and his right can only be abrogated if it is quite clear that there had been some serious fault on his part. I do not believe that these procedural rules would be so harsh as to do away with the substantive right of a party to an award of cost made by the court. I do not think that can be the intention of the rules. It is true that r.22 provides for the consequence of non-compliance with the rules or court order for the service of the notice of appointment, i.e. the order for cost shall be wholly discharged. However, as I said, there is the built-in power to grant extension of time in that particular rule - the notice of appointment has to be served within the period ordered by the Taxing Master or, any extension of time granted by the Taxing Master. So that ties in with r.16. I do not think that the order for cost would be wholly discharged and that the court is powerless to grant any extension because of any unforeseen event or trivial error resulting in a delay in complying with the order or the rules. That being the case, I think the learned Master was quite right. He did have the power to grant an extension of time.

10. In the circumstances, I do not think it is necessary for me to deal with O.3, r.5, giving the court general power to extend time. Suffice it to say that O.3, r.5 is applicable to court procedures in the High Court unless it has been excluded expressly by any particular order or rule. In view of the presence of an express provision in O.62, r.16 which has a specific application in relation to cost and taxation thereof, I doubt whether O.3, r.5 is applicable but in any event, it is not necessary to apply or extend the scope of that rule to this O.62. For the reasons I have given, I would dismiss the appeal with costs to the applicant.