CACC 299/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 299 OF 2014
(ON APPEAL FROM DCCC NO. 1022 OF 2012)
____________
BETWEEN
HKSAR
Respondent
and
WU WING KIT (胡永傑)
1st Appellant
YE FANG (叶芳)
2nd Appellant
____________
Before : Hon Lunn VP, Macrae and McWalters JJA in Court
Date of Submissions : 8, 22 and 29 June 2016
Date of Judgment : 29 September 2016
______________
J U D G M E N T
______________
Hon Lunn VP (giving the Judgment of the Court) :
1. This is the judgment of the Court on costs.
2. On 26 May 2016, the Court allowed the appeals of the appellants against their convictions after trial on 25 August 2014 by District Court Judge E. Yip on separate charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. It did so on the basis that the judge erred in law in following the judgment of this Court in HKSAR v Pang Hung Fai [1] in respect of his approach to the interpretation of the phrase “having reasonable grounds to believe”, which approach was disapproved of by the Court of Final Appeal in its judgment in Pang Hung Fai v HKSAR. [2]
3. The appellants now seek orders, pursuant to the Costs in Criminal Cases Ordinance, Cap. 492, that they be paid the costs of:
(i) the trial in the District Court and matters incidental thereto;
(ii) the appeal before the Court of Appeal and matters incidental thereto, including applications for bail and for leave to appeal and Directions hearings of 24 July and 29 September 2015; and
(iii) pursuant to section 17 of the Ordinance, the ‘wasted costs’ of the vacated days of the appeal hearings of 12 and 13 January 2016.
4. The 2nd appellant seeks a certificate for three counsel, including Queen’s Counsel, for the appeal and a certificate for two counsel for the trial.
The submissions of the respondent
The trial
5. The respondent submitted that the appellants had brought suspicion on themselves and should not be awarded any costs of the trial, including any proceedings preliminary and incidental thereto.
6. In respect of the 1st appellant, the Court was invited to note that he was an experienced solicitor and partner of Fred Kan & Co (“FKC”). He was aware that Jack Chen, a defendant in HCCC 83/2014 and the husband of the 2nd appellant, had been banned for three years by the China Securities Regulatory Commission from holding a senior management position in a listed company or engaging in the securities business and that he had continued his involvement in 462[3] , notwithstanding his resignation as a director of that company. It was in those circumstances that he had permitted FKC’s client account to be used by Jack Chen to receive and transfer $68.95 million, which was described falsely in a receipt as “Costs and disbursement on account”. Further, the 1st appellant had approved the payment voucher, in which the payment to the 2nd appellant was described falsely as “C & D Refund to client”.
7. In respect of the 2nd appellant, her self-declared status as a housewife to HSBC and to the Immigration Department and the activities prior to the material period in the bank account that she had opened in her name with HSBC was wholly incompatible with the 17 deposits into that account. In consequence, there was compelling circumstantial evidence to support a reasonable suspicion that the 2nd appellant had reasonable grounds to believe that the 17 deposits were the proceeds of an indictable offence.
The appeal
8. Having acknowledged that a successful appellant will normally be awarded the costs of his appeal, Mr Caplan QC submitted that nevertheless there may be reasons to depart from the general practice, including the grounds of appeal or the conduct of the appellant or his representatives and the course of the appeal. The respondent did not explicitly resist the applications in respect of the appeal, other than in respect of the Directions hearings and the vacated hearings of 12 and 13 January 2016.
The Directions hearings of 24 July and 29 September 2015
9. Each of the Directions hearings was ordered to be held at the initiative of the Court itself. At the Directions hearing of 24 July 2015, the Court invited submissions as to whether or not it would be appropriate to proceed with the appeal by addressing the Pang Hung Fai ground as a preliminary issue. Although the respondent did not object to that course being taken, in face of objections by the appellants, the Court did not take the matter further.
10. At the Directions hearing of 29 September 2015, the Court invited submissions as to whether or not it would be appropriate to adjourn the hearing of the appeals, pending the judgment of the Court of Final Appeal in HKSAR v Yeung Ka Sing, Carson [4] . Again, in face of objections by the appellants, the Court did not take the matter further.
11. Insofar as the objection was taken by the respondent to the appellants’ application in respect of the costs incurred for those hearings, it was limited to an objection to the costs of engaging Mr Owen QC to represent the 2nd appellant at those hearings. In that respect, it was submitted that “local counsel should be more than competent” to conduct the proceedings. The costs of engaging Mr Owen were “unnecessarily and unreasonably incurred” and ought not to be borne by the public revenue.
The wasted costs of the vacated hearing dates of 12 and 13 January 2016
12. At the commencement of proceedings on 12 January 2016, Mr Caplan made an application for an order prohibiting publication of the proceedings of the appeal, pending the conclusion of the related ongoing trial of other defendants, including the husband of the 2nd appellant, in HCCC 83/2014. There was no issue that the application was made without notice to the Court or the 1st appellant. The latter did not participate in the submissions made to the Court. His attention having been drawn by the Court to authorities which questioned whether or not there was such a power in Hong Kong to make such an order, Mr Caplan asked for a public warning about the publication of the proceedings.
13. Mr Owen submitted that the application for a warning was insufficient and said that an order of the Court was required. Belatedly, and at the invitation of the Court, all those representing the defendants in HCCC 83/2014 appeared before this Court and submitted that the issuing of a warning was insufficient. Rather, they submitted that it was necessary that the Court make an order prohibiting publication. Although the Court issued a warning against publication at the close of proceedings on 12 January 2016, which warning Mr Caplan submitted was sufficient in all the circumstances, in light of the applications of those representing the defendants in HCCC 83/2014, nevertheless the Court received further submissions on 13 January 2016.
14. Mr Caplan submitted that the ongoing submissions to this Court of those representing the defendants in HCCC 83/2014 were the cause of the adjournment of the proceedings to 13 January 2016. The adjournment was not caused by the respondent. Accordingly, there was no causal relationship between the application, as amended, made by the respondent and the adjournment, so that the respondent ought not to bear the costs arising from the adjournment.
Certificate for counsel
15. The respondent submitted that a certificate for more than two counsel could only be justified in exceptional circumstances. There were no such circumstances. The 2nd appellant should be allowed a certificate for two counsel only.
The submissions of the 1st appellant
The trial
16. Mr Blanchflower SC refuted the contention of the respondent that the 1st appellant had brought suspicion upon himself. The fact that the 1st defendant knew that Jack Chen had been the subject of a prohibition order made by the China Securities Regulatory Commission some years earlier and that he had continued to be involved in 462 after his resignation as a director was irrelevant. In respect of the false descriptions contained on the FKC receipt and the payment voucher in respect of the sum of $68.95 million deposited into and withdrawn from the client account of FKC, the documentation was prepared by employees of the firm and the 1st appellant did not direct that a false description be applied to them. He did not notice the errors.
The appeal
17. Having invited the Court to note that the respondent had made no submissions in respect of the application for costs made in respect of the applications for bail, leave to appeal and the appeal itself, Mr Blanchflower submitted that there was no reasonable basis for not ordering those costs to the 1st appellant.
The vacated hearing dates of 12 and 13 January 2016
18. Mr Blanchflower submitted that it could not be sensibly argued that the application made by Mr Caplan on 12 January 2016 could not have been made at a much earlier date. If that had been done, the hearing of the appeal would not have been adjourned. It followed that the adjournment was caused by the respondent’s unnecessary or improper act or omission.
The 2nd appellant’s submissions
The trial
19. Messrs Boase, Cohen and Collins submitted on behalf of the 2nd appellant that she had not brought suspicion on herself. There was no compelling circumstantial evidence against her. To deny her application for costs of the trial would be incompatible with the presumption of innocence guaranteed by Article 87 of the Basic Law under Article 11 of the Hong Kong Bill of Rights Ordinance.
The vacated hearing dates of 12 and 13 January 2016
20. It was submitted on behalf of the 2nd appellant that the cause of the adjournment of the hearing of the appeal came about by the simple failure of the prosecution to give proper notice of its intention to apply for a prohibition of publication of the proceedings in the appeal pending the conclusion of the trial in HCCC 83/2014. Accordingly, the respondent ought to bear the costs of the aborted hearing dates.
Certificate for three counsel for the appeal
21. In support of the application for a certificate for three counsel for the appeal, it was contended that the “grounds of appeal involved unusually complicated legal points arising from the nature of the prosecution’s case and the continuing developments in money laundering law in Hong Kong.” The Court was asked to note that the Hong Kong Bar Association did not oppose the ad hoc admission of Mr Owen QC for the appeal.
A consideration of the submissions
The law
22. Section 9 of the Costs in Criminal Cases Ordinance, Cap. 492 provides:
“ (1) Where the Court of Appeal allows an appeal to which this section applies, the Court of Appeal may order that costs be awarded to the defendant.
(2) This section applies to any appeal-
(a) under section 82 of the procedural Ordinance against conviction;”
23. Section 17 of the ordinance provides:
“ Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings.”
The trial
24. In its judgment in respect of costs in HKSAR v Pang Hung Fai (No 2) the Court of Final Appeal said:[5]
“ The costs of trial
It is well-established that, as a general rule, costs follow the event of an acquittal. The appellant prays in aid this rule in support of his variation application in respect of the costs of the trial in the District Court.
The general rule may, however, be departed from where there is a positive reason to do so, such as where the appellant’s own conduct has brought suspicion on himself or has misled the prosecution into thinking the case against him is stronger than it is.[6] ”
25. In the judgment of the Court of Final Appeal, delivered by Ribeiro PJ, in HKSAR v Wong Tak Keung [7] he said, in respect of an application for costs, of the circumstances in which the applicant had been convicted at trial:
“ The position is somewhat different where the defendant was initially convicted but subsequently has his conviction quashed on a point of law. In such cases,[8] grounds for refusing costs may arise out of the conduct with which the defendant was charged and the general setting of such conduct without in any way undermining the jury’s findings.”
26. In HKSAR v Ting James Henry [9] this Court quashed the applicant’s convictions, following a trial by Beeson J and a jury, of two counts of false accounting. Having ordered a retrial of the applicant and having made an order in favour of the applicant in respect of the costs of the appeal, this Court refused to make an order in favour of the applicant in respect of the costs of the trial, determining that he had “brought great suspicion on himself.” [10] The applicant’s conduct, which this Court found to give rise to “sound reasons for refusing the applicant his cost of trial”,[11] was:[12]
“ (i) the respondent signing the documents which are the subject of the charges;
(ii) the transaction being fabricated and supported by false documents.”
27. In Ting James Henry v HKSAR [13] the Court of Final Appeal allowed the appellant’s appeal, finding that he had not been afforded “a proper opportunity to address the Court of Appeal on the issue of whether there should be a retrial”, and declined to make an order itself that the appellant be retried. In Ting James Henry v HKSAR (No 2) [14] the Court of Final Appeal refused the appellant’s application that he be awarded all the costs of his trial.
28. In the judgment of the Court, Li CJ adverted to the reasons given by this Court for refusing costs:[15]
“ The judgment recites that it is the normal rule that an award of costs in a defendant’s favour follows an acquittal unless there are positive reasons to the contrary. Such reasons include:
“ ‘(a) an accused’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; or
(b) there was ample evidence to convict but the accused was acquitted on a technicality which had no merit.’ R v. Kwok Moon-yan and Anor [1989] 2 HKLR 396.”
The Court of Appeal also cited R v. Man Wai-keung (No.2) [1992] 2 HKCLR 207. In that case when delivering the judgment of the court, Silke VP said at p.214:
“… Whether or not a successful appellant who has been ordered to be retried will get his costs, or any portion of them, of the process which has gone before that decision was made will, of course, lie for the unfettered discretion of this court applying the principles which Kwok Moon-yan attempted to set out. The fact that a retrial has been ordered and the reasons for the making of such an order will be additional factors to be considered in the exercise of that discretion.”
Reference was also made to Tong Cun Lin v. HKSAR (1999) 2 HKCFAR 531 in which, in a court presided over by Li CJ, Litton PJ gave a judgment that set out “the governing principle ”. This principle included the fact that a defendant who is acquitted should normally be compensated out of public revenue for the costs incurred in defending those charges. But, as Litton PJ went on to make clear, this general rule, does not mean that a defendant cannot be deprived of all or part of his costs, due to his conduct generally “… so long as such conduct is relevant to the charges he faced” (see p.535). Further “it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial …”. To this Litton PJ adds “Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict.” ”
29. Li CJ went on to say:[16]
“ It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as “most relevant” to the discretionary exercise. However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”
30. In the result, having noted that in its judgment the Court of Final Appeal had determined the appellant to have been “dishonest in a way relevant to the counts charged” and having said that the convictions were “only set aside because the Court of Appeal considered there to have been a misdirection”, Li CJ said “far from it being argued that the Court of Appeal were not entitled to refuse the appellant his costs, we agree with their decision to refuse him his costs.” [17]
31. In the judgment of the Court in The Queen v Kwok Moon Yan & Another [18] , collegiate guidelines were provided for the approach to be taken to the award of costs in successful appeals against conviction. Although the Court was there concerned with the provisions then obtaining in respect of costs set out in the Criminal Procedure Ordinance, Cap. 221, it is clear that those guidelines are relevant to the current legislation. In the judgment of the Court, Silke VP said:[19]
“ We emphasise that the exercise of the power provided by s.83XX is in the unfettered discretion of the Court, and falls to be exercised in the light of the circumstances of each particular case, but the normal practice is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order .” [Italics added.]
32. Silke VP went on to say:[20]
“ The real issues here are: in what circumstances should this Court find positive reasons for “making a different order” in the case of a successful appellant; and second: do the same considerations apply to the grant or refusal of an award in the Appeal itself as are relevant to costs in all the proceedings prior to the appeal.”
33. Of the first issue, Silke VP said: [21]
“ … positive reasons for not making such an order would be
(i) where the appellant’s own conduce has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. We do not view this as meaning that there must be both a bringing of suspicion and a misleading before a successfu1 appellant will be deprived of his costs. If it is the view of the Court that a man has brought suspicion or himself, or having done that, he has also misled the prosecution, either by the very bringing of that suspicion or some other matter, into thinking the case against him is stronger than it is then these, either separately or combined, are factors which lie for the consideration of the Court in the exercise of its discretion….
(ii) No order of costs should be made where there is ample evidence to support a conviction but it is quashed by this Court on a technicality which has no merit and that covers both costs in the Court of Appeal and elsewhere.”
34. In determining that, in the exercise of its discretion to award costs, separate consideration was to be given by the Court to each level of the courts in which proceedings had taken place Silke VP said:[22]
“ In considering proceedings in each court separately the normal practice, and that which we have indicated as “positive reasons” for the making of a different order, are applicable.”
35. So, the normal practice is that an order should be made in favour of the appellants of their costs of trial. The appellants’ appeals against their respective convictions were allowed because the judge erred in his approach to his interpretation of the phrase “having reasonable grounds to believe”. Nevertheless, in our judgment there are “positive reasons” for making a different order. We are satisfied that the appellants have brought suspicion on themselves.
The 1st appellant
36. The evidence giving rise to the charge against the 1st appellant was summarised in the judgment of the Court at paragraphs 28-33 and, in the context of a consideration of whether or not to order a retrial of the 1st appellant, the significance of that evidence was summarised at paragraphs 166-171; 176-178. In short, the 1st appellant, an experienced commercial solicitor consented to and participated in the deposit of $68.95 million at the direction of Jack Chen into the client account of FKC, which monies were transferred to the account of the 2nd appellant the following day, payment of which was described falsely in a payment voucher signed by the 1st appellant as “C & D refund to client”.
The 2nd appellant
37. The evidence giving rise to the charge against the 2nd appellant was summarised in the judgment of the Court at paragraph 33. The significance of that evidence was addressed, in the context of a consideration of whether or not the judge had erred in ruling that the 2nd appellant had a case to answer, in paragraphs 137-141, together with paragraph 186, in the context of a consideration of whether or not to order a retrial of the 2nd appellant.
38. Next, we turn to consider the weight to be attached to the factor that this Court has ordered that they be retried. As noted earlier, that factor and the reasons for that order are “additional factors” relevant to the issue of the exercise of this Court‘s discretion to order costs.[23] As we stated in our judgment in our consideration of whether or not to order a retrial, an order for a retrial is a considerable burden on the appellants for a variety of reasons. One of the burdens is the costs to them of such a retrial, they having already incurred the costs of the first trial, which lasted 46 days. In our judgment we accepted that the trial was “lengthy and, no doubt, costly.” There is no reason to doubt that the retrial will share those characteristics.
39. We have not found it easy to determine how to give effect to the weight to be given to those factors. No authorities have been drawn to our attention, which assist in that determination. In the result, we are satisfied that, in the particular circumstances of this case, justice is best served by making an order that the appellants have a proportion only of their costs of trial. In the exercise of our discretion, we order that the appellants are to have half of their costs of their trial in the District Court, with a certificate for two counsel. We make no order in respect of any of the related proceedings other than the trial itself.
The appeal
40. Clearly, the appellants are entitled to their costs of the appeal and matters incidental thereto, including their respective applications for bail pending appeal and preparations for and representation at the Directions hearings of 24 July and 29 September 2015.
The vacated hearing dates of 12 and 13 January 2016
41. In the judgment of this Court in HKSAR v Au Yeung Lai Hung, Doris [24] Yeung VP cited with approval [25] a passage in the judgment of Nolan LJ in the Divisional Court in England and Wales in DPP v Denning in which he construed the word ‘improper’ used in a similar context in regulation 3 of the Costs in Criminal Cases (General) Regulations 1986:[26]
“ What constitutes an improper act or omission in relation to costs was explained in DPP v Denning [1991] 2 QB 532, in which No(r)lan LJ had this to say in his judgment (at 541 C-D):
“ … that the word ‘improper’ in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary’, it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly.” ”
42. Yeung VP went on to note that the ambit of the term “wasted costs”, defined by section 19A(3) of the Prosecution of Offences Act, 1985 as being “any costs incurred by party - (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative or any employee and representative” had been addressed by the Court of Appeal of England and Wales:[27]
“ In Re Ronald A. Prior & Co. (Solicitors) [1996] 1 Cr App R 248, the English Court of Appeal construed the phrase “improper, unreasonable or negligent act or omission” to mean “without reasonable cause and one which no reasonably well informed and competent legal profession would have made in these circumstances”.”
43. Yeung VP said that an award of costs against the prosecution pursuant to section 17 of the ordinance required proof that:[28]
“ …the prosecution has done an unnecessary or improper act or omission and that such act or omission has caused the incurrence of the costs.”
44. Although the Court was satisfied that the prosecution’s delay in applying to amend the indictment until the first day of trial could be regarded as an improper act or omission, nevertheless Yeung VP went on to say:[29]
“ …the respondent failed to discharge the burden of proving that the amendment of the indictment had rendered it necessary to adjourn the trial. Therefore, there was not sufficient evidence to establish a causal relationship between the amendment of the indictment and the adjournment.”
45. As we noted in our judgment in respect of the order prohibiting publication, the application made by Mr Caplan for that order was made without any notice whatsoever to the Court. As noted earlier, it was made without notice to those representing the 1st appellant, albeit with some notice to those representing the 2nd appellant. Given the fact that the dates of the hearing of the appeal had been fixed many months in advance of 12 January 2016, it is extraordinary that no advance notice was given of the application. Had such notice been given to the Court, arrangements could have been made for the application to have been heard and disposed of in advance of the date fixed for the hearing of the appeal. In all the circumstances, with respect to the respondent, it was improper to make the application without notice at the commencement of the hearing of the appeal.
46. There is no dispute that it led to an adjournment of the hearing of the appeal for at least part of 12 January 2016. That would not have happened if the respondent had conducted its case properly. What was required was that notice was given of the proposed application in good time by the respondent to the Court, the parties in the appeal and in the ongoing trial that the application was going to be made, so that the Court could fix a date for the hearing of the application that did not impact on the dates fixed for the hearing of the appeal.
47. At the conclusion of proceedings on 12 January 2016, the Court issued a warning against publication of the proceedings in the prospective appeal. Those representing the defendants in HCCC 83/2014 continued to seek an order prohibiting publication. For his part, Mr Caplan submitted that the warning was sufficient. At issue, was whether there was a power in the Court to make the order and, if so, whether it was appropriate to make the order. At a hearing on 13 January 2016, Mr Caplan submitted that the warning issued by the Court the previous day was sufficient, although he said that the Court had power to make an order. In the result, the hearing of the application in respect of publication was adjourned until 28 January 2016 and the hearing of the appeal adjourned.
48. At the adjourned hearing on 28 January 2016, the respondent, now represented by Mr McCoy SC, said that on the instructions of the Director of Public Prosecutions, it was now submitted that it was necessary that the Court make an order, rather than a warning only. In the result, the Court made an order prohibiting publication of the proceedings of the appeal and gave its reasons for ordering in a judgment handed down on 26 May 2016.
49. There is no dispute that on 4 January 2016 the issue of “a substantial prejudicial effect” on the trial in CACC 83/2014 of publicity flowing from the appeal proceedings was raised with the trial judge, A. Pang J. Mr Fitzgerald QC, who represented the 1st defendant in the trial, suggested that the judge refer the matter to the Registrar “rather than leaving it just simply to the parties to make an application”. He suggested that in the alternative the “responsibility would be with the DPP himself to make the Court of Appeal aware of the fact that if there were publicity that might lead to prejudice”. In response to the judge’s enquiry, Ms Draycott SC, who appeared for the prosecution in the trial, said that she would advise “that the application be a joint one.” She went on to say that she thought that Mr Owen, representing the 2nd appellant, “…will be making the application.” The latter assertion is controversial, but it is not a matter that this Court needs to resolve. On 7 January 2016, those instructing Mr Fitzgerald wrote to junior counsel in the Department of Justice appearing for the prosecution in the trial adverting to the fact that the issue of publicity of the appeal proceedings had been drawn to the trial judge’s attention, stating “…we trust that steps are going to be taken to prevent such publicity taking place”.
50. We are satisfied that the prosecution knew of the need to make an application for prohibition of publication of the appeal proceedings pending the currency of the trial, but did not do so timeously. Its failure to do so was an “improper act or omission” which led to the adjournment of the hearing of the appeal on both the 12th and 13th of January 2016. In those circumstances, we are satisfied that it is appropriate that the 1st and 2nd appellants have their costs for those dates.
Certificate for three counsel
51. It is to be noted that, in the judgment of the Court of Final Appeal in HKSAR v Pang Hung Fai [30] , the Court said that “certifying a case as fit for more than two counsel requires “something exceptional”.” The Court went on to note that leading counsel, Ms Montgomery QC and Lord MacDonald QC, had been admitted ad hoc to appear in the appeal. Nevertheless, the Court went on to conclude that “the case was not of “unprecedented” difficulty or complexity as submitted on behalf of the appellant.” In the result, the Court determined that the case was not of “such an exceptional nature to warrant engagement of more than two counsel on behalf of the appellant in the Court of Appeal or this Court.” In doing so, the Court observed:[31]
“ The appearance of London counsel admitted on an ad hoc basis does not affect this conclusion: even if that admission is on the basis that local leading counsel is also engaged, it does not require the engagement of more than two counsel (since the two-counsel rule has long been abolished in this jurisdiction).”
52. We are satisfied that there was nothing “exceptional” about the appeal of the 2nd appellant, either in respect of the law or the factual background of the case. The 2nd appellant had been granted bail pending the hearing of her appeal having regard to the judgment of the Court of Final Appeal in Pang Hung Fai v HKSAR , which led readily to the conclusion that the judge had fallen into error in his approach to the offence with which the 2nd appellant was charged. It was on that basis that her appeal was allowed. The ground of appeal based on the submission that the judge had erred in applying the reasoning articulated in the judgment of the Court of Final Appeal in Oei Hengky Wiryo v HKSAR was not a matter which this Court could entertain, since this Court was bound by that decision. In any event, it was a matter that the Court of Final Appeal had certified gave rise to questions of great and general importance in HKSAR v Yeung Ka Sing, Carson [32] , albeit that subsequently the Court rejected the submission that it was necessary for the prosecution to prove the appropriate offence and reaffirmed its judgment in Oei Hengky Wiryo v HKSAR. We are satisfied that the 2nd appellant is not entitled to a certificate for three counsel for the appeal.
Conclusion
53. We order that the 1st and 2nd appellants are to have half of their costs of the District Court trial, with a certificate for two counsel. We order that the 1st and 2nd appellants are to have their costs of the appeal, including their respective applications for bail and their preparations for and representations at the Directions hearings on 24 July and 29 September 2015, with a certificate for two counsel. In addition, pursuant to section 17 of the ordinance we order that the 1st and 2nd appellants are to have their costs of the hearings of 12 and 13 January 2016.
(Michael Lunn)
(ANDREW MACRAE)
(IAN MCWALTERS)
Mr William Tam, SC, DDPP and Ms Kasmine Hui, PP, of Department of Justice, for the respondent
Michael Blanchflower SC and Maggie Wong, instructed by Winston & Strawn, for the 1st appellant
Boase Cohen & Collins, for the 2nd appellant
[1] HKSAR v Pang Hung Fai (CACC 34/2012; unreported, 31 May 2015).
[2] Pang Hung Fai v HKSAR (2014) 17 HKFAR 778.
[3] China Jin Hui Mining Corporation Limited, later renamed Natural Dairy (NZ) Holdings Limited, a publicly listed company in Hong Kong.
[4] FAMC 28 + 29/2015, 14 August 2015.
[5] HKSAR v Pang Hung Fai (No 2) (2015) 18 HKCFAR 1, at paragraphs 4 and 5.
[6] See e.g. R v Kwok Moon-yan & Anor. [1989] 2 HKLR 396 at 401; Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 at 535; and Ting James Henry v HKAR (No.2) (2007) 10 HKCFAR 730 at §§8, 10 & 16.
[7] HKSAR v Wong Tak Keung (2015) 18 HKCFAR 158.
[8] See e.g. HKSAR v Pang Hung Fai , FACC No 8/2013 (16 January 2015).
[9] HKSAR v Ting James Henry (CACC 318/2005; unreported, 12 December 2006).
[10] HKSAR v Ting James Henry , paragraph 30.
[11] HKSAR v Ting James Henry , paragraph 30.
[12] HKSAR v Ting James Henry , paragraph 26.
[13] Ting James Henry v HKSAR, paragraph 9.
[14] Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730.
[15] Ting James Henry v HKSAR (No 2) , paragraphs 8-10.
[16] Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, paragraph16.
[17] Ting James Henry v HKSAR (No 2) , paragraph 18.
[18] The Queen v Kwok Moon Yan and Lok Man Chiu [1989] 2 HKLR 396.
[19] The Queen v Kwok Moon Yan and Lok Man Chiu ,page 400 H-I.
[20] The Queen v Kwok Moon Yan and Lok Man Chiu , page 401 A-B.
[21] The Queen v Kwok Moon Yan and Lok Man Chiu ,page 401 B-G.
[22] The Queen v Kwok Moon Yan and Lok Man Chiu ,page 402 B-C.
[23] The Queen v Man Wai Keung (No 2) [1992] 2 HKCLR 207, at page 214 lines 39-45.
[24] HKSAR v Au Yeung Lai Hung, Doris [2013] 3 HKLRD 586.
[25] HKSAR v Au Yeung Lai Hung, Doris , paragraph 41.
[26] “Subject to the provisions of this regulation, where at any time during the proceedings-
(c) the Court of Appeal is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all part of the costs are incurred by that party shall be paid to him by the other party.”
[27] HKSAR v Au Yeung Lai Hung, Doris , paragraph 42.
[28] HKSAR v Au Yeung Lai Hung, Doris , paragraph 50.
[29] HKSAR v Au Yeung Lai Hung, Doris , paragraph 56.
[30] HKSAR v Pang Hung Fai (2015) 18 HKCFAR 1.
[31] HKSAR v Pang Hung Fai ,paragraph 14.
[32] HKSAR v Yeung Ka Sing, Carson (FACC 5/2015; unreported, 26 July 2016).