HKSAR v. LEUNG CHUN WAI SUNNY

HCMA152/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 152 OF 2002

(ON APPEAL FROM ESCC 3978 OF 2001)

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J U D G M E N T

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The Charges

1. The appellant Leung Chun Wai, Sunny, was charged with the following offences :

"1st Charge : Wilfully obstructing a police officer in the due execution of his duty

Statement of Offence : Contrary to Section 36(b) of the Offences against the Person Ordinance, Cap212.

Particulars of Offence : LEUNG Chun-wai, Sunny, on the 11th day of August, 2001, at outside Police
	Headquarter, No. 1 Arsenal Street, Wanchai, in Hong Kong, willfully obstructed Au Wai-man, a police officer of the Hong Kong Police Force, in the due execution of his duty.

2nd Charge : Assaulting a police officer in the due execution of his duty

Statement of Offence : Contrary to section 36(b) of the Offences against the Person Ordinance, Cap212.

Particulars of Offence : LEUNG Chun-wai, Sunny, on the 11th day of August, 2001, at outside Police
	Headquarter, No. 1 Arsenal Street, Wanchai, in Hong Kong, assaulted CHOI Chi-lun, a police officer of the Hong Kong Police Force, in the due execution of his duty."

The Procedural and Factual Background

2. The appellant pleaded not guilty to both charges and the trial took place before Mr W.C. Li in Eastern Magistracy. After trial, the learned Magistrate found both offences proved and he sentenced the appellant to a total term of five months. The appellant now sought to appeal against both the convictions and sentences.

3. The trial was originally conducted in Chinese, although counsel for the prosecution had made his final address in English. And on appeal, the appellant's solicitors applied to have the matter heard "bilingually" as counsel for the appellant would be submitting in English. The application was granted. The case had then been adjourned a number of times for different reasons and the appeal was finally heard in English in this court on 10 November 2003. As the written and oral submissions were done in English, I shall also give my judgments in English. However, when I refer to the Statement of Findings, I would quote the original Chinese.

4. The appellant was represented by Mr Martin Lee, on a pro bono brief, leading Mr K.T. Kwok. They had prepared very thorough written submissions to assist the court. At the hearing, Mr Lee had further explained his grounds. He had cited a number of authorities and he had covered all the relevant parts in the transcript. The crucial piece of evidence at the trial, i.e. the video tape, had been played for my benefit in open court

5. Factually speaking, this is not a complicated case. It was about an incident which had taken place on 11 August 2001. The appellant, and a group of people, about 40, took part in a rally. They gathered first at Chartered Garden and then walked to the Police Headquarter at Arsenal Street. There they continued to shout slogans, stating that it was their rights to protest and conduct demonstrations. The purpose of the rally was not a relevant consideration and this was rightly emphasized by the Magistrate.

6. The number of participants in the group had exceeded 30, but it appeared that the organizer(s) had not issued a notice to the police commissioner beforehand and that would, on the face of it, constitute a breach of section 13 of Public Orders Ordinance, Cap. 245. But that was not the main concern of the trial. The appellant had not been arrested or charged with any offences under the Public Orders Ordinance. In fact, none of the participants was arrested except the appellant. It was the prosecution's contention that the appellant's specific conduct towards two police officers present at the scene had constituted the offences of wilful obstruction and assault while the officers were in due execution of their duty. These two officers had been called to testify and the appellant himself had given evidence.

The Grounds of Appeal

7. The appellant sought to rely on two main grounds of appeal. They were stated in the Amended Perfected Grounds of Appeal dated 22 May 2002. Regarding the first charge of Wilful obstruction, the appellant argued that :

"1.	The learned Magistrate erred in law when he applied Rice v Connolly [1966] 2 QB 414 and Lewis v Cox [1985] QB 509 in that he failed to direct himself that 'lawful excuse' must be disproved by the Prosecution, once a prima facie case of lawful excuse was raised by the Defence."

8. In relation to the second charge of assaulting the police, the appellant argued that :

"	6.	In the oral verdict, the learned Magistrate convicted the Defendant of battery on the basis that he had been deliberate in using the loudhailer as a medium against PW2, without, however, making any specific finding as to whether there was any 'bodily contact', 'unlawful force' or 'personal violence' on PW2. In the premises, the learned Magistrate erred in law in failing to consider whether the actus reus of battery had been established by the Prosecution.
	7.	In the Statement of Findings, the learned Magistrate convicted the Defendant of (psychic) assault instead of battery as in the oral verdict. Such a fundamental change of position would, without more, render the verdict unsafe and unsatisfactory.
	8.	The learned Magistrate erred in law in convicting the Defendant of (psychic) assault on the ground that the Defendant caused PW2 to apprehend immediate and unlawful violence, in that not only was there no evidence to support such a conclusion, but the evidence of PW2 himself actually contradicted it, since he said that he did not apprehend any attack or touching by the Defendant or his loudhailer.
	9.	The learned Magistrate erred in law in equating ear pain and/or discomfort with the actus reus of either battery or (psychic) assault."

Submissions on the First Charge

9. So, in relation to the first charge, the gist of the complaint was that the learned Magistrate had failed to consider the defence of lawful excuse in the sense that at the material time, the appellant held an honest mistake of fact. It was said that there was clear evidence before the court that the appellant believed that Inspector Au was not acting in due execution of duty at that moment, and the appellant honestly believed that he was trying to frame up Mr Lo, who was the person in purple-colour garment as shown in the video, and framing up somebody, or to find a scapegoat was not part of an officer's proper duty.

10. The appellant argued that the law would and should recognize an honest mistake on the part of the citizen. Hence, if the Magistrate had accepted that the appellant had an honest belief that the Inspector was abusing his power and thus acting outside the scope of his duty, then there could not be any mens rea as there was no wilfulness. The appellant need not show, on balance, that there was such a belief, but the prosecution must disprove it. Base on the findings made, the Magistrate should have acquitted the appellant. In this regard, the appellant placed special reliance on the two paragraphs on pages 6 and 7 of the Statement of Findings to illustrate the point. It was contended that what was stated therein indicated that the Magistrate had accepted the appellant's testimony of an honest mistake or at least he had not rejected it. It was submitted that if the appellant was found to have the honest belief, albeit a mistaken one, and as long as it was not a mistake of law, then the defence of a lawful excuse should have been considered.

11. In light of these submissions, it would be necessary to find out what the learned Magistrate had really said. In the paragraphs referred to by the appellant, the Magistrate stated (commencing on page 6 until the next paragraph on page 7) :

" 上訴人沒有犯罪紀錄。本席考慮他的證詞的可信性(credibility)，以及像他這類沒有犯罪紀錄的人士的犯罪傾向(Propensity)時，同時提醒自己有關'Barrada'一案的警告。本席認為上訴人並非一名誠實的證人。本席不相信他不知道歐督察向被認為是該集會的組織人盧先生調查是在執行職務，亦不相信他手持揚聲器在警員58819耳邊大喊時真的看不到該名警員。

本席毫無合理疑點地確信上訴人知道警方在調查這次未經警方批准的遊行，而參與遊行者可被檢控。本席毫不懷疑上訴人知道歐督察要求與盧先生談話是在執行這方面的職務。同樣，本席也毫不懷疑當時示威者包括上訴人試圖掩護盧先生，使歐督察無法向盧先生進行調查。上訴人在證供中稱，此舉是為顯示他對事件所持的態度和立場。他認為他們有權進行示威，而這項權利是無需警方准許的。而且，他亦認為歐督察的做法不當，因為他認為歐督察會誣陷盧先生，找他作代罪羔羊。這是上訴人的主觀看法。然而，由於他這個看法，本席確信他知道歐督察當時正執行職務調查這次涉嫌非法的集會，儘管他不認同歐督察的做法，他亦清楚知道歐督察在做甚麼。..."

12. I have read these paragraphs repeatedly. In the final analysis, I do not agree that the learned Magistrate had, as Mr Lee contended, accepted the appellant's evidence that he had made an honest mistake as to the Inspector's intention and conduct. These two paragraphs should be understood in its proper context. It must not be forgotten that the Magistrate had made it quite clear, from the beginning, that he did not consider the appellant to be an honest witness. He did not believe that the appellant was not aware, inter alia, that Inspector Au's approach to Mr Lo, who was taken to be the organizer of the rally, was for investigation and therefore in due execution of his duty. These findings must necessarily mean that any suggestion by the appellant that he was harbouring an honest mistaken belief was not accepted. The Magistrate's further comments in the same paragraph on page 7 was also inconsistent with the possible acceptance of the notion of an honest mistaken belief.

13. It was true that the Magistrate had referred to the appellant's testimony about his belief of a possible frame up. The Magistrate said dismissively that it was only the appellant's subjective view. The Magistrate further commented that such a view actually showed that he knew that Inspector Au was indeed approaching in the capacity of a police officer. I could not accept that these observations could be taken to mean that the Magistrate had not rejected the claim of honest mistaken belief. What the Magistrate was doing here was simply evaluating the evidence of the appellant and tried to point out the inherent weakness of his statement.

14. On the proper reading of the Statement of Findings as a whole, I found that the Magistrate had not accepted the appellant's evidence that he had an honest belief. He must have rejected it. In fact, by stating directly that he did not find the appellant to be an honest witness, it would be rather puzzling that he would on the other hand, accept that the appellant had an honest mistake.

15. There remains the question as to whether the Magistrate had correctly applied the law. On the legal meaning of "wilful obstruction", the leading authority is no doubt Rice v. Connolly [1966] 2 QB 414. There the Court of Appeal was dealing with a similar provision in section 51(3) of the Police Act 1964. Lord Parker CJ held that "obstructs" ....., meant the doing of any act which made it more difficult for the police to carry out their duty, and "wilful" meant not only "intentional", but without lawful excuse.

16. Another leading case on the subject is Lewis v. Cox (1984) 1 QB 509. This is a case on the same point, i.e. section 51(3) of the Police Act 1964. It was held by the court that "a person wilfully obstructed a police constable in the execution of his duty within the meaning of (the section), if he deliberately did an act which, though not necessarily 'aimed at' or 'hostile to' the police, in fact prevented a constable from carrying out his duty or made it more difficult for him to do so, and if he knew and intended (whether or not that was his predominant intention) that his conduct would have that effect; and that the motive with which the act was committed was irrelevant unless it constituted a lawful excuse for the obstruction .....;".

17. I do not think there can be any dispute about these basic principles and also that a mistaken belief could amount to a lawful excuse. In the case of Cambridgeshire and Isle of Ely County Council v. Rust, Lord Widgery CJ, having analysed a number of authorities on the application of "lawful excuse", gave the following interpretation of the term in his judgment :

" I think that in order for the defendant to have lawful excuse for what he did, he must honestly believe on reasonable grounds that the facts are of a certain order when, if they were of that order, he would have an answer to the charge, and indeed his conduct would be lawful and not contrary to the law. I do not believe at any time one can have lawful excuse for conduct because one is mistaken as to the law; everyone is supposed to know the law, but a mistaken of fact of the kind which I have described seems to me to amount to lawful excuse."

This formulation of the principle was expressly approved by Yang CJ (as he then was) in the case of The Queen v. Li Wing Tat and Others [1991] 1 HKLR 731. This was also a magistracy appeal case involving the use of a loudhailer, but the focus was different. On the meaning of "lawful excuse", the Chief Justice stated that :

"The contention here is that because the police over a long period of time, some 18 years or more, have not prosecuted any person under either of the two sub-sections, save for one single occasion when a boutique was summonsed for using a loudspeaker without permit to attract passers-by, the defendants had an excuse in using loudhailers, honestly and reasonably believing that it was permissible so to do. Similar arguments were advanced in respect of the sub-s. (17) offences.

In this connection I need only refer to Cambridgeshire v. Rust [1972]2 QB 426. There Lord Widgery, C.J. sitting with Saw and Wien, JJ, described the word 'excuse' as a reasonable belief that you have the right to do what you seek to do. A defendant therefore has a lawful excuse if, on reasonable grounds, he is honestly mistaken as to a fact (at p. 433 E, p. 434B). He went on to say, 'I do not believe at any time one can have lawful excuse for conduct because one is mistaken as to the law; everyone is supposed to know the law, but a mistake of fact of the kind which I have described seems to me to amount to lawful excuse.'"

18. However, recent judicial views appear to be that the defence need not show reasonable grounds for the mistaken belief but that would be a relevant factor for the trial judge to take into account, when such defence was raised, as to whether there was such a belief on the part of the defendant.

19. In the noted case of R. v. Thomas (1991) 3 NZLR 141, the appeal court in New Zealand had to deal with a similar issue. The facts are useful for our purpose and what happened was this :

"At 4 am on a Sunday morning police cars, chasing a stolen vehicle, forced it to stop in Porirua. The accused and a number of others were drinking at a nearby house and were attracted to the scene by the noise coming from there. Several policemen were struggling with a 'fit young man' who 'took some handling'. The accused thought that the police were using undue force and beating up the man and so she intervened, along with a male associate. The District Court Judge found that she tried to pull one of the policemen away and was restrained and told to go but that she persevered and intentionally tried to interfere with the arrest. He found that her actions amounted to obstruction and that the police were acting in the execution of their duty. The accused appealed to the High Court where it was held that the justification of honest mistake (as to whether the police were using excessive force) was not open to the accused and it was further held that she could not rely on the defence of 'self-defence' provided by s 48 of the Crimes Act 1961. The accused appealed to the Court of Appeal."

In his judgment, Casey J stated the following :

"In the present case the apparent finding of the Judge that these people believed the driver was being beaten up disposes of any suggestion of a wilful shutting of the eyes or indifference. The accused's evidence obviously provided a sufficient foundation to rebut any assumption that she knew the police were acting in the execution of their duties. She knew they were policemen and that they were legally entitled to use necessary force in making an arrest, so that there could be no suggestion she was under a mistake of law.

It is now settled law in New Zealand that in the ordinary class of case where the prosecution must prove mens rea 'an honest belief in a state of affairs or as to the existence of a fact, which if true would make the act innocent, will provide a defence itself. It is not then incumbent on an accused to establish reasonable grounds for such belief although such may be relevant in testing the honesty of the belief in the first place' - per McMullin J in Millar v Ministry of Transport [1986] 1 NZLR 660, 673. It is for the prosecution to prove that the accused had no such belief once an evidentiary basis for it had been established, and the finding of the District Court Judge to which we have adverted - that in the eyes of the accused's party what was happening seemed to amount to a police beating up - clearly left the case in a state of reasonable doubt, if it did not entirely exonerate her. She may have been lucky to get such a finding in her favour, having regard to the way she and her associates jumped so quickly to their conclusion about a police beating up. But on an appeal confined to questions of law this Court must accept the finding on which the judgments in the two Courts below proceeded."

20. The present case was entirely different from a situation where a citizen actually saw some officers using violence on another citizen and he then had an honest belief that the police officers involved were using excessive force. If the appellant had not even allowed the Inspector to complete what he wanted to say or do, in circumstances which none of the officers present were showing the slightest sign of aggression, it would be difficult to see how the appellant could justifiably form an honest mistake. It was therefore not surprising that the learned Magistrate had disbelieved him. Although the Magistrate did not say so specifically, but as I said earlier, having rejected the appellant as an honest witness, honest mistake and therefore the defence of lawful excuse would not be an issue. In my view, the Magistrate's failure to mention the defence of lawful excuse is neither here nor there. He did not fail to consider the defence but the matter simply did not arise due to his rejection of the appellant's evidence. There is nothing unsafe about this conviction.

The Second Charge

21. As to the second charge, the appellant had really raised two points. The more interesting one involved the definition of battery. The core question I had to decide is whether it is a battery if a defendant shouts through a loudhailer which is placed very close to someone's ear and thereby causing the "victim" discomfort but not bodily injury. The prosecution argued that it is a kind of battery and the learned Magistrate agreed. And upon the further finding that the victim was a police officer in due execution of his duty, the offence of the second charge was therefore said to have been made out.

22. It has been stated that whereas the essence of assault is the creation of fear or apprehension in the mind of the victim, the essence of battery is physical contact, direct or indirect, between the defendant and the victim (Offences Against The Person, Stone, at page 110). The case of DPP v. K [1990] 1 All ER 331 has decided that a battery can be committed through an indirect contact between the victim and the defendant, but physical contact remains to be an essential element for the offence of battery. The appellant had argued forcefully that there was no battery committed here because there was no contact.

23. In this area of the law, there is the interesting recent authority of R. v. Ireland and Burstow [1998] AC 147. The question raised was whether a person who made silent phone calls which caused the receiver to have a condition of psychiatric illness could be guilty of the offence of assault. The House of Lords said yes and it was in the apprehension sense of assault, not battery.

24. In his judgment, Lord Slynn of Hadley made the observation that it was not feasible to enlarge the generally accepted legal meaning of what is a battery to include the circumstances of a silent caller who causes psychiatric injury (at page 161). Lord Hope of Craighead stated firmly that there was plainly no element of battery in the circumstances, as at no time was there any kind of physical contact between the appellant and his victims (at page 165). These comments do seem to support the appellant's argument that "no physical contact, no battery".

25. The logic of the decision in the case of Ireland has been questioned. A commentator has argued that the description of the situation in that case really shows a situation of battery, not the assault which the court professed to be discussing, as it referred to an injury actually inflicted, not one apprehended, and that "assault" and "battery" are two distinct crimes, with a different actus reus and a different mens rea (Article entitled "Assault" in Criminal Law Review 1997 at page 435). If the commentator's view was to be preferred, then even silent calls, with no contact between the victim and the defendant, could constitute a battery especially when there was actual injury. In the present case, we are not really dealing with such an abstract situation. We are simply concerned with the effect of unnatural, amplified sound. Can it be said that there was no physical contact between the defendant and the victim and therefore the essential element of the offence was missing?

26. In the case of Kaye v. Robertson (1991) FSR 62, Glidewell LJ made the obiter comment that he thought setting off a camera flash-bulb may be a battery where a bright light is deliberately shone into another's eyes and injures his sight. But the learned editor of Winfield and Jolowicz on Tort said that this might be a practical approach, but it is difficult to reconcile with the fact that trespass is actionable per se (15th edn 1998, page 64, Note 40). The editor further stated that whether the infliction of such things as heat or light or blowing smoke upon a person would be held to be battery is uncertain (Page 64).

27. I agree we are moving into an uncertain area here and there are no decided cases to assist on this issue. But surely, as a matter of common sense, we do feel heat, see light and hear sound. These forms of energy must be constantly touching us, through our different organs. Of course, I agree with Mr Lee that if we take this to the extreme, then a person can commit battery by talking to another, and a lawyer might commit the offence of battery when addressing the court. But we are not talking about normal impact of sound. There must be an implied consent in the ordinary normal situation for us to be "touched" by the sound from people talking to us. We have to accept that as a part of our everyday living. However, would we consent to be "touched" by amplified sound when the loudhailer is being placed next to our ear? The answer must be no, unless in some idiosyncratic situations. I would conclude that when a loudhailer is used as an implement to send out amplified sound at close range of someone's ear without the consent of that person, it must be battery. And it would be wounding if actual bodily injury had occurred as a result. I do not agree that his conclusion would mean an extension of the principle, it is only an application of the basic elements of the offence.

28. Unfortunately, the matter does not end here. In the oral reasons given at the conclusion of the trial, the learned Magistrate stated that :

" 第二條控罪嗰個襲擊正在執行職務警務人員嘅控罪，控方第二證人徐志倫任何疑點都冇，佢係喺度執行緊一位PC當時執行緊嘅職務。被告人就係冇任何合理疑點嘅情況之下，我係裁定佢係特登用呢個揚聲器擺去呢位警員嘅頭部，擺正咗喺佢嘅耳側邊咁樣高聲嗌落去。呢個咁樣嘅動作係一個襲擊嘅動作。辯方曾經抝過就係話冇身體接觸，亦都不造成嚴重嘅身體傷害，冇GBH，咁嘅情況之下，不能構成普通襲擊。呢個理論我係拒絕。

Archbold paragraph 19-174講得好清楚，如果係一個battery，首先我講明，用個揚聲器擺人哋耳朵側邊高聲咁嗌落去，係一個battery。如果有一個battery，咁就唔關係究竟佢係直接咁樣去侵犯人，或者佢係間接用一個medium，用一個媒介、媒體去達到咁嘅目的，喺呢件案裡面嗰個媒體就係呢個揚聲器。我係滿意控方就住呢兩項控罪，係在無合理疑 點嘅情況之下，證實咗被告係有罪，我裁定被告兩項控罪罪名成立。"

Here, it seemed to be clear that the Magistrate had convicted the appellant of assault in the sense of battery.

29. However, in the Statement of Findings, he appeared to have changed the basis of the conviction. He stated that :

" 至於第二項襲擊在正當執行職務的警務人員罪，警員58819徐志倫於案發時正在執行職務，而上訴人用揚聲器向着他的右耳高聲叫喊來襲擊他。本席確信上訴人當時知道警員58819站在該處，於是便走上前蓄意把揚聲器放向他的右耳，高聲向着警員的耳朶叫喊。本席拒絕接納上訴人解釋謂他沒有看見這名警員站在他前面，也沒有蓄意把揚聲器對著警員的耳朶。懷有敵意來作出這行為是這項罪行必不可少的要素，而所懷的敵意亦必須是要令受害者感到憂慮。

在R v. Kimber 一案中77 Cr. App. R. 225 (第228頁)，當'襲擊'(Assault)一詞的意思包括毆打(Battery)時，'襲擊'便可界定為一項蓄意或魯莽的行為，而這行為令投訴人的人身受到非法暴力對待或令投訴人憂慮其人身會即時遭非法暴力對待。當'襲擊'(Assault)一詞是指毆打(Battery)時（通常都是這個意思），這便純粹指蓄意或魯莾地向投訴人使用非法武力的行為。不論違法者是直接以他的身體，或是透過他所控制的武器或工具來施行毆打都是沒有分別的。第二項控罪的所有要素均已證明至毫無合理疑點。上訴人懷有敵意，他以揚聲器向着警員58819的耳朶高聲叫喊，使這名警員憂慮他的人身會即時遭受非法暴力對待，這便犯了第二項控罪。"

30. The respondent tried to argue that the learned Magistrate had not changed the basis of the conviction. I have read the relevant parts of the oral judgment and the Statement of Findings several time, and I come to the view that there was a shift of the basis of the conviction, at least it appears to be so on the face of the record. Assault and battery are distinct offences, and for that reason a conviction of 'assault and battery' or of 'assault or battery' will be quashed because a person cannot be convicted of more than one offence or of alternative offences in one information. I note that the respondent have conceded on this point. (Criminal Law, Card, Cross, and Jones, 15th edn, page 163).

31. The further complication in this case was that the officer said quite clearly in his evidence that he was not apprehensive of any bodily injury or harm being done to him by the appellant. He said that he did not expect the appellant to hit him with the loudhailer or use his body to bump against him (page 130 of Bundle). In light of such evidence, it would appear that a conviction of assault based on apprehension is not really appropriate in any case. I fear that the failure to clarify the basis of conviction and the apparent differences in the oral judgment and the Statement of Findings had rendered the conviction of the second charge unsafe and unsatisfactory.

Conclusions

32. In the circumstances, although I totally agree with the learned Magistrate's observation that the use of a loudhailer by the appellant in such a way, i.e. placing it so close to the officer's ear and deliberately shouted loudly, causing the officer to experience temporary ear pain, was a case of battery, I have to allow the appeal on this second charge in view of what I have said about the basis of the conviction. Consequently the sentence of the second charge has to be set aside.

33. Coming back to the first charge, I would dismiss the appeal as the Magistrate was right in convicting the appellant. I have further considered the submissions on sentence, and I would agree with the respondent that this is a case of deliberate and hostile obstruction against the Inspector which was totally uncalled for. It is a bad case of its kind. I found no merit in the appeal against sentence and I consider that the sentence of two months is entirely appropriate. The appeal on both the conviction and sentence regarding the first charge is therefore dismissed.

Costs

34. There is an outstanding matter. When the appeal came before Nguyen J on 7 February 2002, he allowed the application for adjournment so that the respondent could translate their reply into English. Mr Lee for the appellant had opposed the application but he declined to accept an arrangement of having the case go part-heard. Nguyen J also made an order that the costs thrown away could be dealt with by himself or by this court. On my part, I would be most reluctant to remit the case back to Nguyen J just to deal with this matter. But the difficulties I have is that as I happen to be able to read Chinese as well, the adjournment on that occasion might not be necessary, but I hasten to add that it does not mean that the adjournment should not have been granted. On reflection, as there was the offer to have the case go part-heard and it was not acceptable by the appellant, I tend to think that in the circumstances there should perhaps be no order as to costs. But I have not heard counsel on this. I shall therefore make an order nisi that there be no order as to costs in relation to the adjournment on 7 February 2002, to be made absolute after 14 days from today. Parties have liberty to apply in writing within 14 days to address the court on all matters relating to costs.