HKSAR v. LEE MING TEE

FACC No. 1 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2003 (CRIMINAL)

(ON APPEAL FROM HCCC NO. 191 OF 1999)

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J U D G M E N T  ON   COSTS

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Chief Justice Li:

1. On 22 August 2003 the Court unanimously allowed the appeal, set aside the permanent stay ordered by Seagroatt J, remitted the matter to the Court of First Instance for the respondent to be tried, and directed the parties to lodge written submissions as to costs. Such submissions have been lodged, and the Court has considered them. For the reasons contained in the judgment given by Mr Justice Bokhary PJ, the Court unanimously deals with costs in the manner set out in that judgment.

Mr Justice Bokhary PJ:

2. The appellant came to the Court for the setting aside of the stay and the remittal of the matter to the Court of First Instance for the respondent to be tried. And the appellant has succeeded in obtaining both of those two things, the setting aside and the remittal. There is no reason why costs should not follow the event. Accordingly it is ordered that the appellant's costs of the stay application before Seagroatt J, its costs of the application for a certificate under s.32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, its costs before the Appeal Committee and its costs before the Court be paid by the respondent.

3. Turning to the intervener, the position is as follows. The intervener came before Seagroatt J upon his i.e. the judge's request. But that request was the result of allegations made by the respondent. The intervener was before the judge to defend itself against the very serious allegation, made by the respondent, that it i.e. the intervener had terminated its enquiry into Mr Meocre Li's conduct in the Kin Don placement in order to protect his status and standing as an expert. And the intervener went to the Appeal Committee and then to the Court in order to exonerate itself from the judge's finding that that allegation had been made out against it. It is true that the intervener is at fault in one respect. This is because it, like Mr Meocre Li, ought to have disclosed the fact of the Kin Don enquiry to the prosecution so that the prosecution could disclose it to the defence as a matter that might lead to a train of enquiry that might have unearthed material for challenging Mr Meocre Li's reliability. But this does not alter the fact that the intervener faced a very serious allegation, levelled at it by the respondent, which it had to come to court to meet, and which it has successfully met. Accordingly it is ordered that the intervener's costs before Seagroatt J, its costs before the Appeal Committee and its costs before the Court be paid by the respondent.

4. This leaves the question of whether, as the appellant asks, the respondent should be ordered to pay the appellant's costs of the aborted trial before Seagroatt J. The respondent submits that there is no power to make in this appeal an order as to the costs of that trial. There is no need to come to a conclusion as to that. Even if there is such power, it ought not to be exercised in the present circumstances. This is so for the following reasons. It is true that the ground on which the judge aborted the trial was his view, eventually shown to be unsustainable, that discredit attached to Mr Meocre Li in the Guangdong Kelon matter, being a matter to which the respondent had drawn the judge's attention. And it is also true the judge would (or should) have seen that that ground was unsustainable if he had followed the course, proposed by the appellant and opposed by the respondent, of re-calling Mr Meocre Li to investigate the matter. But there is a countervailing consideration. If the respondent had been convicted, the absence of disclosure of the fact of the Kin Don enquiry would have provided a basis on which such conviction might have been successfully challenged. Accordingly the Court makes no order as to the costs of the aborted trial.

5. As far as the costs of the written submissions as to costs are concerned, the appropriate course in all the circumstances is that the appellant, the respondent and the intervener be left to bear their own costs of such submissions. Accordingly it is so ordered.