R. v. NG CHOR WAN and Another

IN THE COURT OF APPEAL

1994, No. 304
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. We have before us an application made on behalf of the two applicants Ng Chor Wan and Ng On Kee that they be awarded costs pursuant to section 83XX(4) of the Criminal Procedure Ordinance: that is to say, to award such sums as would compensate each of them for the expenses properly incurred by them in and about their defence at the trial, pursuant to the provisions of s73A(2) of the Criminal Procedure Ordinance.

2. The principles for an award of costs are well-known and are set out in The Queen v. Kwok Moon-yan [1989]2 HKLR 396. These applicants succeeded in having their convictions of blackmail in the District Court over-turned on appeal. They succeeded in this court on a substantial matter raised by the defence. They did not succeed on a mere technicality. Whilst neither applicant had told the police in their initial interviews what eventually turned out to be the substance of their defence, that was their constitutional right and cannot be held against them for the purposes of this application. It cannot be said that they had brought the prosecution upon themselves. For these reasons it appears to us proper that the application should be allowed.

3. The order we make therefore is that they be awarded such sums as would compensate them for the expenses properly incurred by them in and about their defence, such amount of costs to be ascertained by the Registrar pursuant to s83XX(5) of the Criminal Procedure Ordinance, and will include the costs incurred by them in the present application.