SECRETARY FOR JUSTICE v. WONG CHI FUNG

FACC Nos. 8, 9 and 10 of 2017

[2018] HKCFA 35

FACC No. 8 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2017 (CRIMINAL)

(ON APPEAL FROM CAAR NO. 4 OF 2016)

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FACC No. 9 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2017 (CRIMINAL)

(ON APPEAL FROM CAAR NO. 4 OF 2016)

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FACC No. 10 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2017 (CRIMINAL)

(ON APPEAL FROM CAAR NO. 4 OF 2016)

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JUDGMENT ON COSTS

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Mr Justice Fok PJ:

1.  This is the judgment of the Court on costs.

2.  On 6 February 2018, the Court handed down its judgment allowing the appellants’ appeals against the Court of Appeal’s review of their sentences.[1]

3.  Pursuant to directions dated 9 February 2018, the appellants filed written submissions applying for costs orders in their favour.[2] The extent of the costs orders sought by each appellant will be apparent from the discussion below.  The respondent filed submissions in reply to those of the appellants on 19 March 2018.[3] 

4.  The respondent accepts that the appellants should be awarded some of their costs.  It is not disputed that the appellants should recover the costs of the review of sentence before the magistrate under section 104 of the Magistrates Ordinance.[4] These were ordered to be paid by the respondent to the appellants by the magistrate.  The appellants gave undertakings not to enforce those costs orders when the Court of Appeal quashed the magistrate’s sentences and substituted terms of imprisonment.  In the light of the Court’s decision allowing the appeal against the Court of Appeal’s substituted sentences, it is strongly arguable that the undertakings would no longer operate to bar enforcement of the magistrate’s costs orders but, in any event, the respondent now does not oppose the appellants’ enforcement of them and they should be at liberty to do so.

5.  However, the respondent opposes the appellants’ application for costs orders in their favour in respect of:

(1)  The section 81A review before the Court of Appeal;

(2)  The 2^nd and 3^rd appellants’ applications to the Court of Appeal for certification of questions of law; and

(3)  The 2^nd appellant’s application for the costs of his application for bail pending the appeal to this Court.

6.  The respondent also opposes the 1^st and 2^nd appellants’ applications for costs orders in their favour for the entirety (as opposed to part only) of their costs in respect of:

(1)  The applications before the Appeal Committee for leave to appeal to this Court; and

(2)  The costs of the substantive appeals before this Court, including the 1^st appellant’s application for an order in respect of his costs of obtaining legal advice prior to the application for leave to appeal. [5]

Costs before the Appeal Committee for leave to appeal and the Court on the substantive appeal (including the 1^st appellant’s pre-application costs)

7.  Despite the respondent’s submissions, which seek to apportion the costs as between the four issues argued and therefore to apply discounts to reflect the issues on which the appellants were not successful, we decline to adopt an issues-based approach and we consider that the 1^st and 2^nd appellants should have their costs of the application to the Appeal Committee for leave to appeal and their costs of the substantive appeal.[6] We consider that this should also apply to the 1^st appellant’s costs of legal advice prior to the application for leave to appeal,[7] subject to his satisfying the Registrar on taxation that those costs were properly attributable to that application.

8.  The appeal to this Court proceeded on the basis of the grant of leave to appeal by the Appeal Committee[8] in respect of four questions of law of great and general importance as well as on the substantial and grave injustice basis: see Wong Chi Fung at [43].  Although the appellants’ arguments on two of the issues, namely issue 1 (the Court of Appeal’s power to review the facts on a review of sentence) and issue 2 (civil disobedience and the exercise of constitutional rights as a motive), were not accepted, their arguments on issue 3 (the retrospective application of guidelines for the future) and issue 4 (the proper application of section 109A of the Criminal Procedure Ordinance[9]) were.

9.  The effect of the Court’s judgment of 6 February 2018 was to confirm that the Court of Appeal should not have substituted revised sentences for those imposed by the magistrate.  In short, the appellants were successful in obtaining an order from this Court quashing the revised sentences imposed by the Court of Appeal. The appellants had to appeal to this Court in order to achieve that result.

The 2^nd appellant’s application for bail pending appeal to the CFA

10.  In proposing that there be no order as to the 2^nd appellant’s costs of his application to a single permanent judge for bail pending appeal to the Court,[10] the respondent would appear to be taking a technical point on the absence of a request for costs in the summons.

11.  Events have shown that the application was justified and the application was one which the 2^nd appellant had to make in order to secure his release from custody pending the hearing of his application for leave to appeal and the substantive appeal thereafter.

12.  We are satisfied that the 2^nd appellant should have an order in his favour in respect of these costs.  If and insofar as the 1^st appellant seeks the same costs, there is no reason in principle why he should be denied them.

The 2^nd and 3^rd appellants’ costs of applying to the Court of Appeal for a certificate on points of law

13.  The respondent opposes an order in favour of the 2^nd and 3^rd appellants in respect of the costs of applying to the Court of Appeal for a certificate on points of law.  This application had been based on the sole ground that was issue 1 in the substantive appeal (namely, the Court of Appeal’s power to review the facts on a review of sentence).  The respondent points out that the appellants were not successful on this issue in the substantive appeal.

14.  Whilst that is true, the fact remains that the Appeal Committee subsequently granted leave to appeal on the basis that this was a question of law of great and general importance involved in the appeal.  The Court of Appeal ought, therefore, to have acceded to the application.  On this footing, following the reasoning above in relation to the costs of the application to the Appeal Committee and the substantive appeal, we would order these costs in favour of the 2^nd and 3^rd appellants.

15.  However, we accept the respondent’s contention that the engagement of three counsel before the Court of Appeal on this application was not warranted and we therefore refuse a certificate for three counsel in respect of that application.

The costs of the section 81A review

16.  The respondent argues that there should be no order as to the costs of the section 81A review before the Court of Appeal since that application was made in the public interest and resulted in the clarification of the law on the various issues argued.  It points out that the Court of Appeal made no order as to these costs.

17.  There is an element of inconsistency in the respondent’s submissions in this regard.  On the one hand, it argues that it launched the application for a review of sentence in the public interest.  Yet, on the other hand, it asks the Court not to order the appellants’ costs to be paid out of public revenue.  It seems to us that if the issues were one of public interest, which they clearly were, this is all the more justification for awarding the successful appellants the costs of resisting the sentence review (since they should have prevailed in the Court of Appeal).  After all, the result that should have obtained after the hearing before the Court of Appeal was that the application should have been refused, albeit guidance for the future would be given for the sentencing of offenders participating in an unlawful assembly involving violence.

18.  The prosecution relies on cases where the Court made no order as to costs because of the public interest element involved.  However, in Leung Kwok Hung & Others v HKSAR,[11] the appeal was one against conviction and the conviction was ultimately upheld and the appeal dismissed.  In those circumstances, it is readily understandable why there was no order as to costs as between the appellant and respondent.  Similarly, in Secretary for Justice v Lau Kwok Fai & Another,[12] the unsuccessful respondent, who acted in person, was not ordered to pay the successful Secretary for Justice’s costs as appellant because of the public interest element of the litigation.  Neither of these cases provides a persuasive parallel to the present proceedings.

19.  We would therefore order that these costs be paid by the respondent to the appellants.

Conclusion

20.  We therefore make costs orders in favour of the appellants to the extent set out above.  In addition, the respondent should also pay the appellants the costs of their respective applications for costs.