LIU SIK KEUNG v. HKSAR

FAMC No. 41 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 572 OF 2003)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. The determination of the Appeal Committee will be given by Mr Justice Litton NPJ.

Mr Justice Litton NPJ:

2. This is an application for leave to appeal to the Court of Final Appeal.

3. The applicant was convicted by a magistrate on 2 charges : one of indecent assault, the other of common assault; the applicant is a middle aged man, the complainant a young woman. The offences occurred in the early hours of 24 December last year. After an office party, the applicant gave the complainant a lift home in his car : He was the complainant's superior at work. On the evidence as believed by the magistrate the applicant made attempts to hold the complainant's hands, which she repelled, making it clear that she did not want intimacy. Later, in the car, he forcibly kissed her on the cheek and on the mouth, holding her head : This constituted the first charge. After she had alighted, and was about to cross the road, he suddenly kissed her on the cheek : This constituted the second charge.

4. On these findings by the magistrate, not disturbed on appeal, there is no room for a defence based on genuine but mistaken belief that the complainant consented to the intimacies taking place.

5. The application is without merit and is dismissed.

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R U L I N G A S T O COSTS

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Mr Justice Bokhary PJ:

6. Mr Saw for the respondent invokes s.43(2) of the Court's statute the Hong Kong Court of Final Appeal Ordinance, Cap. 484, and invites us to order that the costs of and occasioned by this application be paid by the applicant to the respondent. This subsection provides that:

" Where the Appeal Committee refuses an application for leave to appeal, the costs of and occasioned by the application shall be paid by such party or person as the Appeal Committee shall order, and such costs shall be taxed by the Registrar, or some other officer of the Court to whom the Registrar may delegate this function."

7. Rule 7 of the Hong Kong Court of Final Appeal Rules provides that:

" (1) Where the Registrar is of the opinion either on the application of the Respondent or of his own motion that an application discloses no reasonable grounds for leave to appeal, or is frivolous or fails to comply with these Rules, he may issue a summons to the applicant calling upon him to show cause before the Appeal Committee why the application should not be dismissed.

(2) The Appeal Committee may, after considering the matter, order that the application be dismissed or give such other directions as the justice of the case may require."

If a leave application proceeds to an oral hearing that means that the application has not been filtered out under this rule. That has to be borne in mind even though, as we accept, an order for costs can be made against an unsuccessful leave applicant notwithstanding that the application had proceeded to an oral hearing. Something sufficiently out of the ordinary is needed to justify such an order as to costs. Moreover, in a criminal case it is necessary to ensure that the Appeal Committee's jurisdiction to order costs against an unsuccessful leave applicant is not exercised in such way as to give rise to undue deterrence against seeking leave to appeal. Mr Saw very properly accepts this.

8. In the present case we do not see anything sufficiently out of the ordinary to justify ordering costs against the applicant. We make no order to costs, thus leaving each side to bear its own costs.