HKSAR v. GIBSON SHAW

HCMA 355/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 355 OF 2002

(ON APPEAL FROM KTCC 981/2002)

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J U D G M E N T

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1. This is an appeal against a magistrate's order to pay HK$3,000.00 wasted costs. The facts of the case are set out very fully in the submission of Miss Ho in her letter dated 18 July 2002. Suffice it to say that the Appellant, being counsel assigned to appear on behalf of a Defendant in the Magistrate's Court, had, at the trial, informed the Magistrate that he had a part-heard case in the District Court on the same day in April that the magistrate was so adjourned the case part-heard to. Mr Shaw did not say that he would not be able to appear but that he would seek an indulgence from the District Court under the circumstances. That particular date in April was set down in order to accommodate a prosecution expert witness. The learned Magistrate appearing dissatisfied with the situation refused to start the trial. Subsequently, another lawyer was assigned to replace the Appellant and the learned Magistrate then made an error by ordering wasted costs for that morning to be paid by the Appellant because the Magistrate had insisted on waiting for another lawyer to replace the Appellant before starting the trial.

2. The Magistrate's power to award costs is under Section 18 of the Costs in Criminal Cases Ordinance, Cap 492. The meaning of wasted costs is set out very clearly in Section 2 of the same Ordinance. It says:

(a) any costs incurred by a party so the proceedings as a result of -

(i) any failure to appear; or

(ii) lateness,

without reasonable cause leading to an otherwise avoidable adjournment, on the part of any legal or other representative or any employee of a legal representative or other representative.

3. The second meaning of wasted costs under the Ordinance is where any costs incurred by a party to the proceedings which, in the light of such failure or lateness occurring after they were incurred, the court or the judge considers it is unreasonable to expect that party to the proceedings to pay.

4. As the Appellant had pointed out, there was a risk that he might fail to appear. There was, in fact, no failure to appear or lateness, so I totally agree with Miss Ho in conceding this appeal and that the learned Magistrate had no power to order costs in these circumstances. So the appeal is allowed. The order for costs set aside.