THE QUEEN v. KWOK MOON YAN AND OTHERS

Guidance on the award of costs of the Court of Appeal in criminal matters.

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J U D G M E N T

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Silke, V. P.:

1. Kwok Moon Yan, the Applicant, in Criminal Appeal 347/1988 had, on 13th January 1989, his appeal against conviction allowed.

2. He had been convicted in the District Court on three charges of burglary which related to events which took place on 24th November 1987. Other defendants were also involved. Kwok was the driver of a van used in the course of daylight burglaries. In that which took place at the Chi Shing Knitting Factory the van was parked in a cul-de-sac at the back of that factory. Two other of the defendants were seen to run out after being surprised on the sixth floor by a police officer. In the cul-de-sac they gestured to Kwok who drove off leaving the other defendants behind in the process.

3. Then, later, at the Universal Building Factory, goods were taken. At the Wang Lik Industrial Building, police were on duty. They saw Kwok's van arrive and goods, which were later identified as part of the goods from Universal Building, were removed from it. Kwok and the other defendants were arrested. Goods which had been taken from a third premises, the Shing Ka Garment Factory, were also recovered at Wang Lik.

4. On arrest Kwok had made statements to the police. He had made no comment when shown statements of another defendant and he had denied being present at the Universal Building Factory. At trial he gave evidence to the effect that he was the owner of the van and that he earned his livelihood by hiring it out. In the course of the hiring he normally drove and helped with the unloading and loading of goods. The transactions on 24th November were ordinary commercial ones as far as he was concerned. He was disbelieved.

5. The issue in the appeal was whether, apart from any disbelief of Kwok's evidence, there was sufficient evidence in the Crown case to justify the convictions.

6. We felt that, while there was grave suspicion that Kwok was involved in a burglarious enterprise with the other defendants, the trial judge was not justified in reaching his conclusions of guilt by finding, as a matter of commonsense - and in the absence of other positive evidence, except that of the waving off and the finding of goods in his possession - that the other defendants would not have brought Kwok along unless he was also involved.

7. Mrs. Robertson applied for costs on his behalf.

8. Lok Man Chiu in Criminal Appeal 500 of 1988 had, on 3rd February 1989, his appeal against conviction allowed.

9. Lok had been tried in the District Court on one charge of living on the earnings of prostitution and one of assisting in the management of a vice-establishment on 11th April 1988. The premises were the Ka Sha Villa, 330 King's Road, Block A, 2nd floor. He was also tried on two further charges, one of living on the earnings of prostitution and one of managing a vice-establishment on 19th April 1988. There the premises were the May Do Building, Block A and C, 2nd floor, which was also situated at 330 King's Road.

10. He was found not guilty of the first two but convicted of the second two - the managing charge being amended to assisting in the management. On the charges upon which he was convicted the prosecution's case depended on the evidence of a police constable who was PW7. His credibility was in issue. The trial judge found that there was a strong likelihood that another constable had copied out his statement of the events from the statement made by PW7 but without PW7 knowing anything about it.

11. There was internal evidence in the testimony of PW7 and the other constable at trial which gave us cause to doubt the validity of that finding and the consequent reliance by the trial judge on the credibility of PW7.

12. Mr. McCoy applied for costs on his behalf.

13. As the principles upon which this Court acts in the granting or the refusing of costs have not until now been fully argued we adjourned Kwok's application to a day to be fixed to permit this to be done. When Lok's application came on for hearing a little later we also adjourned it for the same purpose. We directed that both applications be consolidated and heard on the same day. We further indicated that when the submissions had concluded we desired to consult with other members of the Court of Appeal to obtain a collegiate view of the correct principles.

14. Neither Kwok nor Lok were 1egally aided.

15. In the consolidated applications the applicants were similarly represented; Mr. McCoy addressed us on the principles, his submissions being adopted by Mrs. Robertson and each separately addressed us on the merits of their respective applications. Mr. Cross appeared for the Crown.

16. We have now consulted with other members of the Court of Appeal and that which we state is the collegiate view.

17. The root of our jurisdiction lies in section 83XX of the Criminal Procedure Code, Cap.221. this reads:

"83XX. (1) This section applies to any appeal -

(a)    under section 82 against conviction;

(b)    under section 83J against a verdict of not guilty by reason of insanity;

(c)    under section 83M against a finding under section 75 that the appellant is under disability.

(2)    Where an appeal to which this section applies is allowed, the Court of Appeal may subject to subsection (3), order the payment out of the public revenue of the costs of the appellant.

(3) No order shall be made under this section where -

(a)    in the case of an appeal referred to in subsection (1)(a), the appellant is ordered under section 83E to be retried;

(b)    in the case of an appeal referred to in subsection (1)(b), the provisions of section 83K(4)(a) apply; or

(c)    in the case of in appeal referred to in subsection (1)(c); the provisions of section 83N(3) apply.

(4)    The costs payable under this section shall be such sums as appear to the Court of Appeal reasonably sufficient to compensate he 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.

(5) The amount of costs ordered to be paid under this section shall, except where the amount is fixed by the Court of Appeal, be ascertained by the Registrar."

18. So - we have a discretion to order the payment of costs of an appellant out of public revenue but subject to the prohibitions in subsection (3). This to compensate the appellant for any expenses properly incurred in the appeal, in the trial and in any appearance before a magistrate. The expenses in the appeal include any proceedings preliminary or incidential to it which we consider would include such matters as an application for the calling of fresh evidence and its taking, bail applications an the like.

19. We may either fix the amount ourselves or direct that they be ascertained by the Registrar. There is no specific provision directing taxation but we have little doubt that the Registrar, in ascertaining what they should be, would apply the ordinary rules of taxation contained in the provisions of Order 62 of the Rules of the Supreme Court.

20. The provenance of section 83XX lies in section 24 of the Criminal Appeal Act 1968, now incorporated as section 7 of the Costs in Criminal Cases Act 1973. The award of costs in England and Wales is presently governed by section 16 of the Prosecution of Offences Act 1985. This Act is not applicable in Hong Kong and it is based on a schema both as to Legal Aid, regulations made under the Act [Costs in Criminal Cases (General) Regulations S.I. 1986 No.1335], the fund from which payments are made and the nature of prosecutions very different from that pertaining in Hong Kong - though the Crown Prosecution Service may now have brought that last more in line with procedures in Hong Kong. There was also issued on 29th May 1989 a Practice Direction entitled "Crime: Costs in Criminal Proceedings" which revises all previous Practice Directions and Notes.

21. Section 9 subsection (3) of the Criminal Procedure ordinance reads:

"(3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprison of treason) 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." (Emphasis supplied)

22. We are therefore enjoined to take note of and apply the English practice; see Ng Yui Kin and others v. The Queen [1983] HKLR 356. But the words emphasised, in our judgment, entitle us to take into consideration general Hong Kong circumstances in applying English practice and procedure in these Courts.

23. That having been said there are a number of English Practice Directions and Practice Notes which have relevance.

24. The starting point is the Practice Direction (Costs Successful Defendants) [1973] 1 WLR 718. That need not detain us for it was superseded by the Practice Direction (Costs: Acquittal of Defendant)[1981] 1 WLR 1383 which was in similar terms but with the one change that the power to award costs to an acquitted defendant was limited to cases where a defendant was acquitted on all counts. One further point arises in relation to the 1973 Practice Direction. It had been given by Widgery, L. C. J. after consultation with the Judges of the Queens Bench and the Family Division. In R. v. Arron [1973] l WLR 1238 Scarman, L. J. (as he then was) accepted it, though without giving reasons, as applicable to proceedings in the Court of Appeal and this is the only reported case where this was done - though Scarman, L. J. does not appear to have been advised of the full extent of what was to be the normal practice.

25. It is noteworthy that in para 2.7 of the May 1989 Practice Direction that the Court of Appeal is enjoined, when making a costs order, to have in mind the principles applied by the Crown Court in relation to acquitted defendants.

26. Bearing the 1981 Practice Direction in mind, in our judgment it is open to this Court, if it decides to exercise its discretion in favour of an award of costs to a successful appellant, to follow it as far as it  is practical and with particular reference to any award it might see fit to make in respect of proceedings other than the appeal itself. We find guidance in those Practice Directions and notes as to the course we should take. However, the Practice Note of the 25th November 1982: [1982] 3 AER 1152: relates specifically to the Magistrates Courts and is not of direct relevance.

27. We emphasise that the exercise of the power provided by s.83XX is in the unfettered discretion of the Court, and falls to be exercised in the light of the circumstances of each particular case, but the normal practice is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order.

28. Mr McCoy has submitted that, because the discretion is so intimately connected with the facts of the case and the conduct of the trial that it is a discretion exercised in the course of criminal proceedings (see The Queen v Wong Hing Yuk [1989] 1 HKLR 251 and therefore there is an onus upon the Crown to prove beyond reasonable doubt that the circumstances justify the Court in declining to exercise its discretion in the appellant's favour. With respect, we do not agree. An award is discretionary and there is no "standard of proof" in the accepted trial sense.

29. The real issues here are: in what circumstances should this Court find positive reasons for "making a different order" in the case of a successful appellant; and second: do the same considerations apply to the grant or refusal of an award in the Appeal itself as are relevant to costs in all the proceedings prior to the appeal.

30. On the first: positive reasons for not making such an order would be (i) where the appellant's own conduce has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. We do not view this as meaning that there must be both a bringing of suspicion and a misleading before an successful appellant will be deprived of his costs. If it is the view of the Court that a man has brought suspicion or himself, or having done that, he has also misled the prosecution, either by the very bringing of that suspicion, or some other matter, into thinking the case against him is stronger than it is then these, either separately or combined, are factors which lie for the consideration of the Court in the exercise of its discretion.

31. The manner in which an appellant originally meets the charge will be a factor. We are aware that in The Queen v. Lee Tsat Pin Cr. App. 315/85 (unreported) the Court took the view that the non-advancing of an explanation to the investigating authority did not fall within the rubric of bringing suspicion or misleading. We entirely accept that the principle that no man should become his own betrayer must remain inviolate. But we do not think this to mean that, if an appellant had a good and valid explanation which he neglected to bring forward at an early and appropriate moment this should not be a factor in considering his contribution to the prosecution bringing the charge in the first place. It is unlikely that a case of that nature would ever reach the Court of Appeal but if it did then no costs of anything other than the proceedings in that Court should be allowed.It might be preferable, were these circumstances to arise, if a Court of Appeal were to fix a sum itself rather than referring it to the Registrar for him to ascertain it.

    (ii) No order of costs should be made where there is ample evidence to support a conviction but it is quashed by this Court on a technicality which has no merit and that covers both costs in the Court of Appeal and elsewhere.

32. Mr. Cross has asked us to add another category. Where a retrial is ordered there is no jurisdiction to make an award of costs. Therefore, he submits, where, because of some reason peculiar to an appellant or to the circumstances of the offence, this Court declines to order a retrial which it otherwise would, (for the principles applicable see Au Pui Kuen v. R. [1979] HKLR 16) no order of costs should he made.

33. We decline to accept so broad an approach and to find this to be a "positive reason". It would be a matter for the discretion of this Court in all the circumstances - but it would seem very unlikely that this Court would further exercise its discretion to make orders in respect of any earlier proceedings.

34. On the second issue: we would respectfully adopt and follow that which was said by Watkins L. J. in delivering the judgment of the Court of Appeal in R. v. Agritraders Ltd. [1983] 1 QB 464. There, in commenting on a proposition advanced to the Court that an order for costs in the Court of Appeal and in the Crown Court - expressed as "costs here and below" - included all other Courts in which costs were incurred, said at page 468:

"We find this submission almost incomprehensible. By section 7(1) this court may, in its discretion obviously, order the payment out of central funds of the costs of the appellant. In the exercise of that discretion the court is entitled to award an appellant his costs in this court and refuse him his costs in the Crown Court. It may award him his costs in the Crown Court too; likewise the magistrates' court. It will exercise its discretion, if invited to do so, in respect of each court in turn, having regard to the circumstances in which on appeal against conviction has been allowed in this court, the circumstances obtaining in the Crown Court, bearing in mind Practice Direction (Costs: Acquittal of Defendant) [1981] 1WLR 1383 and the circumstances of the committal proceedings. The considerations involved in each of this variety of circumstances will inevitably be different and demand, therefore, a separate exercise of the discretion."

35. In considering proceedings in each court separately the normal practice, and that which we have indicated as "positive reasons" for the making of a different order, are applicable. Additionally we interleave that which we have said earlier as to the unlikelihood of making a costs order in respect of lower court proceedings, of whatever nature, where but for particular circumstances a retrial would have been ordered. Conversely if no retrial could have been ordered having regard to the state of the evidence it does not necessarily follow that costs of proceedings other than in the Court of Appeal will be awarded.

36. If there is to be an application for costs then that application should be made upon the judgment of the Court of Appeal being pronounced and in respect of all proceedings for which the order is sought. For the future counsel would be well advised to arm themselves with at least tentative instructions and, if the decision of the Court should come as a surprise to them, they should, if they consider an application for costs to be valid, ask for a short moment to take instruction. The Court will be loath to entertain applications made subsequent to the determination of an appeal.

37. We have not, and deliberately, considered the position of a legally aided appellant. While the generality of this judgment might well have application to orders to be made in respect of such a one, statutory provisions and the practicalities of the grants of Legal Aid in Hong Kong and their funding have considerable bearing. On these, properly, we have not been addressed.

38. One final point, Mr. Cross has asked us to state that section 83XX only starts to bite if an appellant has his conviction quashed on all counts in an indictment or a charge sheet. We think generally that must be right though we would not wish unduly to fetter that which is said to be an unfettered discretion. There may well be circumstances in which an award of costs either in part or in whole would be proper where some of the convictions are upset and others not.

39. Turning now to the individual applicants and applying the principles which we have enunciated. In respect of Kwok we think he should have the costs of the appeal and of the day specially set aside for argument. In respect of Lok he will have his costs of the appeal, of the day set aside for this argument and of his application for bail pending appeal. In each case the Registrar is directed to ascertain the sum which should include the costs taking judgment.

40. Before leaving this matter we would express our indebtedness to counsel for the assistance we have received.