HKSAR v. CHOW NOK HANG

FACC No 12, 13 & 14 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS12, 13 AND 14 OF 2012 (CRIMINAL)

(ON APPEAL FROM HCMA NO 193 OF 2012)

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FACC No 12 of 2012

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DECISION ON COSTS

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Decision of the Court:

1. The appellants were charged before a magistrate under s 17B(2) and, alternatively, under s 17B(1) of the Public Order Ordinance.  They were convicted under s 17B(2).  However,had it been necessary, the magistrate said he would have also found them guilty under s17B(1).  He sentenced them each to imprisonment for two weeks.

2. On appeal, Barnes J quashed the convictions under s 17B(2) and convicted them under s 17B(1).  She fined the 1^st appellant $2000 and 2^nd appellant $3000.

3. Both the prosecution and the appellants applied for leave to appeal to this court.  The prosecution wanted to restore the decisions of the magistrate and the appellants to appeal against their convictions under s17B(1).Leave was granted.

4. By judgment dated 18 November 2013 this court allowed the appeals of the appellants and dismissed the prosecution’s appeal.

5. Since then, the parties have made written submissions on costs.

6. The 1^stappellant asks for costs in all three levels of court and the 2^ndappellant costs of the appeals only.  

7. The prosecution opposes these applications and contends that the parties should bear their own costs.  Alternatively, the appellants should be allowed only part of their costs.

8. So far as the 1^st appellant’s costs of the trial are concerned, we have no doubt that he should not be awarded such costs. His conduct has been roundly condemned by each member of this court. Such conduct is relevant to consideration whether he should be deprived of such costs.  Here, the 1^st appellant could rightly be regarded as having brought the prosecution upon himself.  

9. However, there is no good reason to deprive these appellants of the costs of their appeals to Barnes J or to this court.  There is no reason at all why they should not have the costs before Barnes J.  As for the costs in this court, the fact that the prosecution had been granted leave to appeal is not a reason to deprive the appellants of any part of the costs of the appeal.  There is nothing in their conduct of the appeals which would justify depriving them of any part of their costs.  It is true that not all their submissions had succeeded before this court. But, the certified question “what are the elements of the offences created respectively by section 17B(1) and section17B(2) of the Public Order Ordinance?” required a consideration of each element of the offence.  As Ribeiro PJ pointed out in his judgment, since the charges related to conduct in the course of a demonstration, it was necessary to consider them in the context of the constitutional rights of peaceful assembly and freedom of demonstration(para19-20). The importance of these considerations and their complexity are reasons why 4 members of the court felt it necessary to give a reasoned judgment, and their judgments exceeded 200 paragraphs. This is not a case to deprive the appellants of any costs before this court.

10. The 2^nd appellant also asks that we certify this case fit for 3 counsel.  We prefer to leave this to the taxing master. It is a misconception that an additional counsel will necessarily increase the total costs.  There are cases, where the most junior counsel, whose fees should be the lowest, would be asked to do work which, had he not be available, would have to be done by a more senior(and more expensive)barrister.  There are cases where an additional lawyer added costs because of duplication of effort. Costs are best determined by the taxing master.  

11. We would order the prosecution to pay the costs of the appeals to each of the appellant such costs to be taxed unless agreed.  As for the costs before Barnes J, such costs to be taxed under Legal Aid Ordinance.  As for the costs in this court, the costs of 1^st appellant to be taxed under Legal Aid Ordinance.