THE SECRETARY FOR JUSTICE v. TAM KIT-I

FACC No. 4 of 2022,
FACV No. 12 of 2022,
FACC No. 1 of 2023 and
FACV No. 2 of 2023

[2023] HKCFA 24

FACC No. 4 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2022 (CRIMINAL)

(ON APPEAL FROM CACV NO. 103 OF 2022)

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FACV No. 12 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO. 103 OF 2022)

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FACC No. 1 of 2023

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMP NO. 54 OF 2011)

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FACV No. 2 of 2023

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO. 103 OF 2022)

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(Heard together)

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JUDGMENT ON COSTS

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The Court:

1.  On 29 March 2023, the Court handed down its Judgment in these appeals and made two costs orders nisi in respect of the costs. The first, in FACV 12/2022, was a costs order nisi that the costs of the appeal and the proceedings below be paid by the respondent, Tam Kit-I (“Tam”), to the appellant, the Secretary for Justice (“SJ”). The second, in FACC 4/2022, FACC 1/2023 and FACV 2/2023, was a costs order nisi that there be no order as to costs.

2.  The respondent, Tam, now applies to vary the costs orders nisi. She submits that, in FACV 12/2022, she as respondent should pay 65% of the SJ’s costs of the appeal with a certificate for two counsel. In FACC 4/2022, including the application for leave to appeal in FAMC 13/2022, she submits that the SJ should pay the respondent’s costs of the appeal with a certificate for two counsel.

3.  The basis of the application to vary the costs orders nisi is that the substantive appeal to the Court of Final Appeal involved separate and distinct issues, namely Question 1 (concerning whether the judge’s decision not to grant a confiscation order on the basis that Tam had not absconded resulted in the automatic discharge of the restraint order in respect of the balance in her bank account with Wing Hang Bank) and Question 2 (concerning the issue of whether proceedings against a judge’s refusal to discharge a restraint order is criminal or civil in nature). It is submitted on behalf of Tam that, whilst the SJ should have his costs on Question 1, he should be deprived of his costs on the separate and distinct issue of the propriety of his criminal appeal (in FACC 4/2022), which came to be considered under Question 2. Since Tam succeeded on that discrete question, she should have her costs of that appeal.

4.  We do not, with respect, agree with the proposed variation.

5.  The principal issue in this litigation between the parties was Question 1. In practical terms, the substance of the dispute between the parties and the commercial rationale for the original application to the Court of First Instance by Tam (which in due course became the subject of the appeal in FACV 12/2022) was the application to discharge the restraint order following the judge’s earlier refusal to grant a confiscation order over the proceeds in the Wing Hang Account. How that issue was to be determined by the courts, whether as a criminal proceeding or a civil proceeding, was a secondary, procedural, question. Whilst that procedural question was a matter of general interest to the public, the underlying dispute between the immediate parties to the litigation was, as noted, Question 1.

6.  In the circumstances, we reject Tam’s invitation to apportion the costs strictly on an issue-based approach and to apply a substantive discount of one-third of the overall costs to the SJ’s recoverable costs in FACV 12/2022 and, separately, to award her the costs of FACC 4/2022.

7.  However, we accept that there is some justification in making a modest deduction to the costs to which the SJ should be entitled in respect of the appeal in FACV 12/2022. The procedural issue that became Question 2 in the appeal was identified when the SJ applied to the Appeal Committee for leave to appeal, which was the reason the SJ also sought leave to appeal in FAMC 13/2022 (which became FACC 4/2022). Upon hearing the substantive appeal, the Court held that the appeal was civil in nature, so that there was no proper jurisdictional basis for the SJ’s criminal appeal in FACC 4/2022. In the result, Tam should not have had to deal with that criminal appeal and so, whilst no order as to the costs of the appeal in FACC 4/2022 itself is warranted, a modest deduction in the costs for which Tam should be liable to the SJ in respect of FACV 12/2022 would be justified. This is simply a reflection of the fact that the SJ was not wholly successful on all issues argued before the Court of Final Appeal in FACV 12/2022 and FACC 4/2022.

8.  In the SJ’s submissions, it is suggested that if a deduction in the costs is to be made to the costs in FACV 12/2022 because of the issue raised in Question 2, Tam should still be ordered to pay the SJ at least 80% of the costs in FACV 12/2022, plus the costs of the proceedings below. This 20% deduction proposed by the SJ on this alternative basis is perhaps generous but we think it appropriate to accede to this proposal as a matter of fairness between the parties.

9.  Therefore, for the reasons set out above:

(1)  We vary the costs order nisi in respect of FACV 12/2022 and make instead an order that the respondent do pay the appellant 80% of the costs of FACV 12/2022, together with the costs of the proceedings below, to be taxed if not agreed. As has been previously stated, it is unnecessary for the appellant to ask for a certificate for two counsel, since taxation will proceed on the basis that the appeal was fit for two counsel and, subject to the reasonableness of the fees paid, the Registrar will normally allow the costs incurred by a party who has employed two counsel in the Court of Final Appeal.[1]

(2)  We confirm the costs orders nisi in respect of FACC 4/2022, FACC 1/2023 and FACV 2/2023. There shall be no order as to the costs of those appeals.

[1]   HKSAR v Chan Kam Ching (No 2) (2022) 25 HKCFAR 181 at [20]-[21].