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

CACC 185/2021

[2022] HKCA 1820

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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BETWEEN

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JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court)

1.  On 4 August 2022, we gave our judgment[1] (the “Judgment”) allowing the respondent’s appeal against the ruling of the trial judge awarding costs of the aborted retrial to the applicants pursuant to section 4 of the Costs in Criminal Cases Ordinance Cap 492 (the “CCCO”). 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.

2.  The applicants, D1, D2 and D3, each applies for a certificate to the Court of Final Appeal on the basis of what are said to be two points of law of great and general importance. The two points of law are expressed in the case of each applicant in identical terms as follows:

“Question 1: What on the true construction of section 4 of the Costs in Criminal Cases Ordinance (Cap. 492) is the meaning of “where a defendant is not tried for an offence for which he has been indicted or committed for trial”?

Question 2: Whether the power to award costs under the said section 4 covers a situation where a defendant’s trial is aborted by reason of the discharge of the jury?”

3.  There is no notice of election for oral hearing from any parties. Having received all written submissions from D1 and D2 and the respondent, the matter is to be dealt with on the papers. Accordingly, this is the Court’s judgment.

The applicants’ written submission

4.  Mr Tsoi and Ms Chiu, on behalf of the 1^st and the 2^nd applicants, submitted that the phrase “not tried for an offence for which the defendant was committed” in section 4 of the CCCO is not defined in the Ordinance and the category of situations to which the section may apply is clearly not closed. It is contended the requirement of “finality” is not found in the express language of section 4. The section is drafted in wide terms and, in comparison, is not worded as restrictively or specifically as other sections in the CCCO. It is argued that given the carefully reasoned ruling of the trial judge, it is reasonably arguable that the scope of section 4 of the CCCO is wider than this Court’s construction in the Judgment and will depend on facts-specific considerations such as what event caused the trial to be terminated. It is further contended that the two questions concerning the scope and the application of the section will have significant impact on the issue of costs in future cases where a trial is aborted but the proceeding has not reached finality. Therefore, the two questions are of great and general importance and should be so certified.

The respondents’ submission

5.  In opposition to the present application, Ms Lam, on behalf of the respondent, reiterated her submissions in the appeal against the ruling of the trial judge and submitted that the ruling of this Court in the Judgement is correct. Ms Lam argued the two questions sought to be certified are not reasonably arguable. Further, Ms Lam submitted that section 4 of the CCCO is sufficiently and clearly formulated. There is no ambiguity in its application with reference to the wording of the section itself, other provisions in the CCCO as well as the legislative intent as shown in the legislative records and the authorities from Hong Kong and England and Wales. Hence, the present applications for certification should be dismissed.

Consideration

6.  We said in the Judgment that the essence of this appeal is on the true interpretation of section 4 of the CCCO. We had considered the legislative history leading to the enactment of the Ordinance and construed the words “is not tried” in terms of their context and purpose by taking into account the contextual setting of the CCCO as a whole and came to the view as we did.

7.  However, as this appeal turns on the issue of statutory interpretation, we agree that these points of law are of great and general importance.

8.  A section 32 certificate to the Court of Final Appeal certifying the above two points is granted.