HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

CACC 185/2021

[2022] HKCA 1517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 185 OF 2021

(ON APPEAL FROM HCCC NO 309 OF 2019)

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DECISION ON COSTS

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Hon M Poon JA (giving the Decision on Costs of the Court)

Introduction

1.  By its notice of appeal, the appellant appealed against the order of Deputy High Court Judge Bruce (the “Judge”) dated 6 August 2021 that the respondents be awarded the costs of the retrial including the costs of the costs application with a certificate for two counsel. The appellant also sought costs of the appeal and costs of the costs application before the Judge with certificate for three counsel.

2.  On 4 August 2022, we gave our judgment[1] (the “Judgment”) allowing the appellant’s appeal against the ruling of the Judge giving rise to the order, and set aside the costs order dated 6 August 2021. The basic facts of the case and the reasons for allowing the appeal are fully set out in the Judgment and will not be repeated here.

3.  In the Judgment, we directed the determination of the appellant’s costs application be on paper and also gave directions for written submissions in respect of the application.

The appellant’s written submission

4.  The appellant, having considered section 19(5) of the Costs in Criminal Cases Ordinance (“CCCO”), abandoned its claim for the costs of the appeal in its written submission dated 18 August 2022. The present application only concerns the costs of and incidental to the costs application before the Judge.

5.  Ms Vinci Lam, on behalf of the appellant, argues that section 17 of the CCCO applies in the present case. There was never any jurisdiction for costs to have been granted under section 4 of the CCCO and the case of HKSAR v Lee Ming Tee[2] did not support the respondents’ application for costs of the retrial. The application for costs was thus “an unnecessary or improper act”. Ms Lam further submits that as the said costs order has been set aside, costs of the costs application should follow the event.

6.  Ms Lam contends that section 19(4) and (5) does not preclude the present application by the appellant as the costs of the costs application did not form part of the appeal although it was the subject matter of the appeal.

7.  In respect of the application for certificate for three counsel, it is argued that the costs application of the respondents was heard before the Judge at short notice and was largely based on a section seldom invoked. Four counsel were extensively involved in legal research on the relevant statutory provisions, rules and practice directions in both Hong Kong and England and a comprehensive review of the legislative history of the CCCO was involved. The appellant only seeks a certificate for three counsel.

The respondents’ submission

8.  By letters dated 23 August 2022 and 18 August 2022, the 2^nd and the 3^rd respondents respectively adopted the 1^st respondent’s submission dated 22 August 2022 in reply to the appellant’s written submission.

9.  Mr Tsoi, on behalf of the 1^st respondent, accepted that this court, in allowing the appeal and quashing the Judge’s costs order, has jurisdiction to grant any appropriate costs order in relation to the costs of the costs application. It is argued that the costs application before the Judge was not improper or unnecessary conduct covered by section 17 of the CCCO. Mr Tsoi further contends that as Lee Ming Tee relied on by the respondents in the costs application before the Judge was only overruled in our judgment, the costs application could not be said to be improper or unnecessary conduct. It is also submitted that the costs application was triggered by the discharge of the jury through no fault of the respondents. Further, the defence costs were substantial and the respondents had been facing extremely difficult personal and financial circumstances which justified the application.

10.  In respect of the appellant’s application for certificate for three counsel, Mr Tsoi referred to the observation of the Court of Final Appeal in Fu Kor Kuen Patrick & Anor v HKSAR[3] and submitted that there was nothing so exceptional in the costs application before the Judge that required three counsel.

Discussion

11.  s.19(4) of the CCCO provides that:

“On an appeal under this section a court or a judge shall, if it or he allows the appeal, quash the order which is the subject of the appeal and subject to subsection (5), make such order for costs in place of it, as it or he thinks appropriate for the case.”

12.  The subject of the appeal, that is, the costs order by the Judge, is as follows:

“53. …

(1)  The accused are to have their costs of the retrial including the costs of the costs application…

(2)  There will be a certificate for 2 counsel.

…”

13.  By our judgment setting aside the costs order, the costs of the costs application and the 2 counsel certificate, whether by necessary implication or as part of the costs order, fall away altogether. We are therefore not precluded by section 19(4) from making such order for costs in place of the order by the Judge.

14.  The appellant relies on section 17 of the CCCO, which provides:

“Costs unnecessarily or improperly incurred

Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings.”

15.  To invoke that section, it must be proved that the other party “has done an unnecessary or improper act or omission and that such act or omission has caused the incurrence of the costs”: paragraph 50, HKSAR v Au Yeung Lai hung Doris[4]. There, the Court of Appeal held that:

“41. What constitutes an improper act or omission in relation to costs was explained in DPP v Denning [1991] 2 QB 532, in which Nolan LJ had this to say in his judgment (at 541 C-D):

…that the word ‘improper’ in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary’, it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly.

42. In Re Ronald A Prior & Co (Solicitors) [1996] 1 Cr App R 248, the English Court of Appeal construed the phrase “improper, unreasonable or negligent act or omission” to mean “without reasonable cause and one which no reasonably well informed and competent legal profession would have made in these circumstances.”

16.  The appellant submits that the respondents’ reliance on section 4 of the CCCO which did not confer jurisdiction on the Judge to grant the subject costs constituted an unnecessary or improper act or omission which caused the appellant to incur costs.

17.  In our view, wrong reliance on a section could be due to a misunderstanding of the law or misinterpretation of a judgment short of counsel incompetence. The respondents relied on Seagroatt J’s dicta in Lee Ming Tee that the court’s discretion in awarding costs is unfettered. That judgment, though inconsistent with Secretary for Justice v N[5], had not been expressly overruled prior to our judgment. As the appellant has submitted, section 4 of the CCCO was seldom invoked. We find that the appellant fails to surmount the hurdle of satisfying this court that the application for costs relying on that section and Lee Ming Tee in the court below was “without reasonable cause and one which no reasonably well informed and competent legal professional would have made in these circumstances”.

Conclusion

18.  We decline to award costs of the costs application to the appellant and make no order as to costs.