HKSAR v. CHAN KAU TAI

CACC26/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2004

(ON APPEAL FROM HCCC 333 OF 2002)

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DECISION ON COSTS

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Hon Ma CJHC (giving the decision of the Court) :

1. On 12 December 2003, the Appellant was convicted of 10 charges of his having, as a public servant, accepted advantages contrary to the Prevention of Bribery Ordinance, Cap.201.  On 14 December 2005, this Court gave leave to the Appellant to appeal against conviction, allowed the appeal and ordered a retrial.

2. The Appellant now seeks an order that he be given the costs of the trial and the appeal.  He also seeks an order for costs in his favour in relation to two directions hearings (on 31 August 2005 and 1 December 2005 before Tang JA) and a hearing that took place on 5 December 2005 where the ICAC sought leave to intervene as a party to the proceedings.

3. There are accordingly five hearings for which the Appellant seeks our order for costs : -

(1) The trial.

(2) The appeal.

(3) The two directions hearings on 31 August 2005 and 1 December 2005.

(4) The intervention application on 5 December 2005.

The appeal

4. As identified in the Reasons for Judgment handed down on 26 January 2006, the Appellant submitted essentially three heads of appeal, these involving the issues of non-disclosure, breach of the right to privacy and the right of silence.  While it is true, as Mr Blanchflower SC has submitted, the Appellant has succeeded on two of these three heads (being the issues of non-disclosure and the right of silence), we feel it is necessary, in order properly to determine the incidence of costs, to analyze the matter more closely.

5. The following aspects appear to us to be important : -

(1) The non-disclosure issue involved two main parts, one dealing with the question whether there was non-disclosure in the first place, the other with the question of bad faith on the part of the ICAC.  We took the view that there was non-disclosure.  However, this Court did not agree with the Appellant’s submissions that there had been bad faith in the non-disclosure on the part of the ICAC such that a retrial should not be ordered.

(2) The issue of bad faith took up much time in the appeal (involving as well the hearing by the Court of testimony from several witnesses).

(3) The issue of breach of the right to privacy was the other issue in the appeal that also took up much of the Court’s time.  The Appellant failed in his arguments on this issue.

(4) As for the issue involving the right of silence, there were actually three grounds of appeal based on this issue.  The Appellant succeeded on one ground, failing on the other two.

6. In the circumstances, we are of the view that the proper order for costs is to make no order even though the appeal has been allowed.

The trial

7. Here, we are of the view that the Appellant should have his costs.  As much is accepted by the Respondent.  The failure to disclose resulted in a mistrial : an important aspect of the case had not been put before the jury for consideration.  The costs of the trial were wasted as a result.

The two directions hearings

8. These hearings related to the issue of non-disclosure in both the aspects to which reference has been made (more perhaps in relation to the issue of bad faith).  The reason for the order that costs be reserved in those directions hearings was evidently that the Court regarded the material sought by the Appellant, as being material that ought at that stage to be disclosed so that at the full hearing of the appeal, all possibly relevant material would be available for the Court’s consideration.  Whether or not such material would ultimately be important remained at that stage to be seen.  In the event, the material obtained was of extremely limited use.  In our view, there should likewise be no order as to costs in relation to these applications.

The intervention application on 5 December 2005

9. The application for joinder was dismissed for the reasons contained in the Reasons for Decision also handed down on 26 January 2006.  The Appellant ought clearly have the costs of this application from the Respondent.  It was an application, as events turned out (and through no fault of the Appellant) one that should not have been made.  The fact that, as Mr Zervos SC points out, it was only made by reason of the bad faith issue does not detract from this.