HKSAR v. TAM KWAI KEUNG AND ANOTHER

CACC10/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.10 OF 2001

(ON APPEAL FROM DCCC NO.755 OF 2000)

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D E C I S I O N

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Burrell J (giving the decision of the court) :

1. On 21 November 2001, this court allowed the 2nd applicant's appeal against conviction and made a costs order in his favour, to be taxed if not agreed. A sealed version of the costs order was drafted by solicitors in the following terms : "the costs of this appeal and the court below be awarded to the 2nd applicant, to be paid by the respondent, to be taxed if not agreed." It is dated 11 December 2001.

2. By this summons, the 2nd applicant now seeks leave to amend the costs order to include the costs of all bail and bail variation applications in the High Court before and after conviction and the costs of restraint order proceedings which had been taken out pursuant to sections 15 and 16 of the Organized and Serious Crimes Ordinance, Cap.455.

3. In a written skeleton, counsel for the respondent has helpfully set out in chronological order the 15 appearances made in connection with this case. The respondent opposes those relating to the restraint order proceedings, which are the 2nd, 5th and 8th in that list and the High Court bail proceedings which are the 4th, 6th and 7th in that list. We shall deal with them separately.

The restraint order

4. The respondent's objection to the restraint order proceedings costs is based on the argument that, firstly, they were separate proceedings, and, secondly, at the conclusion of the third restraint order hearing there was an order by consent discharging the restraint order which concluded with the words that "there be no order as to costs of this application".

5. The first restraint order hearing was ex parte so no costs arise from that. At the second hearing, a restraint order was made. Had a separate order for costs been made on that occasion it could not have been in the appellant's favour. We are therefore satisfied that the final costs order made, namely, "no order" relates to all the restraint order proceedings, and we do not propose today to make an order which will change the effect of that consent order. We therefore decline to make an amendment including those costs in this court's order of 11 December 2001.

The High Court bail applications

6. These are opposed on the basis that the appellant should have applied for his costs under section 9J of the Criminal Procedure Ordinance, Cap.221 when he was granted bail. It is noted that all the written applications for bail and variations of bail terms requested that "costs of the application be provided for". The respondent submits that as no orders were made about costs, it follows that the order would have been "no order as to costs" had one been made.

7. However, we take the view that bail applications of this nature are sufficiently incidental to the proceedings generally to be included in a costs order following a successful appeal. We add this, however. On bail applications, particularly where the summons includes words such as "costs be provided for", counsel should ensure that something is said in relation to costs. Probably no more than "costs reserved to the trial judge", would suffice. If however, the order is silent as to costs, an appellate court may well interpret the silence as meaning "no order as to costs". Counsel on a future occasion could not complain if such an interpretation was made.

8. The final amendment requested is that there be a certificate for two counsel at trial and on appeal. We grant this application and amend the order accordingly.

Costs

9. As for the costs of today's hearing, before making an order we would invite submissions from counsel.

Submissions from counsel

10. The 2nd applicant has been successful this morning in amending the order to include the High Court bail applications. On that basis we take the view that the 2nd applicant is entitled to the costs of today and we grant a certificate for two counsel.