HKSAR v. CHAN CHING HEI

HCCC 39/2024

[2026] HKCFI 3712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 39 OF 2024

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DECISION ON COSTS

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1.  D1, following his acquittal of a charge of murder, applied for costs under four different headings: (i) costs of the first trial in relation to the murder count (ii) preparation costs in relation to the murder count (iii) costs of the second trial in relation to the murder count and (iv) certificate for three counsel.

Background of the Court

2.  D1 was charged with under one count of murder, two counts of wounding with intent and one count of assault occasioning actual bodily harm arising out of a verbal dispute between the customers and the bouncers of one N1 Bar in Tsim Sha Tsui. The verbal dispute ended up in a group attack which resulted in the death of a bouncer. D1 pleaded not guilty to all charges except the charge of assault occasioning actual bodily harm.

3.  D1 stood trial with D2. The first trial commenced on 17 November 2025. In the prosecution’s closing on 15 December 2025, objection was taken by D2’s counsel regarding the prosecutor’s remarks on D2’s failure to give evidence. As a result, it was ordered that the jury should be discharged and a second trial was ordered which commenced on 3 March 2026.

4.  In the second trial, D1 was acquitted of murder but convicted of manslaughter by unlawful act and the two counts of wounding with intent.

(i)  Costs of the first trial in relation to the murder count

5.  In the prosecutor’s closing speech, the prosecutor adversely commented on D2’s failure to give evidence. It was then decided that the remarks constituted a material irregularity of the proceedings and that given the serious nature of the accusation and the charge D2 faced, the jury ought to be discharged.

6.  D1 sought the costs of the first trial pursuant to S17 of the Costs in Criminal Cases Ordinance (hereinafter referred to as “CCCO”).

7.  S17 of the CCCO conferred a discretion on the court to order a party to pay costs “as a result of an unnecessary or improper act or omission by or on behalf of the other party”.

8.  It was submitted by the prosecution that firstly, an adverse procedure ruling did not automatically trigger compensable costs; secondly even assuming the remarks made by the prosecutor justified the discharge of the jury, it did not follow that the conducts had crossed the S17 threshold.

9.  The prosecution essentially relied on R v Evans (Eric) & Ors (No.2)[1]:

“145. Something else is needed. Bad faith will of course almost always suffice. But otherwise, each case will necessarily be fact-dependent. For example, where a claim fails as a matter of law in circumstances in which the evidential position has not materially changed, then the prosecution may have acted improperly if (e.g) it has patently failed to give the case the appropriate degree of legal analysis that has led to a charge being brought and pursued which, as a matter of law, cannot succeed. Even in those circumstances, I stress that it is important that section 19 applications are not used to attack decisions to prosecute by way of a collateral challenge; and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecutorial decisions. It is also important to bear in mind that the section 19 jurisdiction is summary in nature, and so, to form the basis of an application under section 19, the conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it.

146. Therefore, respectfully reflecting the comments of Hughes LJ in R v P [2011] EWCA Crim 1130 and Lord Thomas in the Sheffield Crown Court case [2014] 1 WLR 4639, I consider that cases in which it will be appropriate to make (let alone grant) a section 19 application against a public prosecutor will be very rare, and restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him. For example, where it is alleged that the decision to prosecute or a similar prosecutorial decision is the improper act on which a section 19 application is founded, it is difficult to conceive of circumstances in which it could succeed unless the decision was shown to be unlawful in a public law sense, i e leaving aside decisions unlawful because made in pursuance of an unlawful policy of the prosecutor (or made other than in accordance with the prosecutors own lawful policy), if the decision was one which no reasonable prosecutor could have made. If it is a decision that a reasonable prosecutor could have made, then generally a section 19 costs order will not be appropriate.

……

Summary of the Principles

148. …

(ii) In respect of an application under section 19 of the 1985 Act, a threshold criterion is that there must be ‘an unnecessary or improper act or omission’ on the part of the paying party, i.e. an act or omission which would not have occurred if the party concerned had conducted his case properly or which could otherwise have been properly avoided.

(iii) In assessing whether this test is met, the court must take a broad view as to whether, in all the circumstances, the acts of the relevant party were unnecessary or improper.

…

(v) The section 19 procedure is essentially summary and so a detailed investigation into (e.g.) the decision-making process of the prosecution will generally be inappropriate.

(vi) Each case will be fact-dependent; but cases in which a section 19 application against a public prosecutor will be appropriate will be very rare, and generally restricted to those exceptional cases where the prosecution has acted in bad faith or made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him. The court will be slow to find that such an error has occurred. Generally, a decision to prosecute or similar prosecutorial decision will only be an improper act by the prosecution for these purposes if, in all the circumstances, no reasonable prosecutor could have come to that decision.”

10.  The prosecution stated that those legal proper propositions were consistent with the Hong Kong approach in HKSAR v Au Yeung Lai Hung Doris[2]. It was further submitted that the Court of Appeal had confirmed that procedure setbacks or late applications did not automatically constituted “unnecessary” acts or omissions within S17, and even the threshold was arguably met, the Court retained a residual discretion to refuse costs.

11.  In discharging the jury, this Court stated that the prosecutor was not merely commenting on the defence’s failure to give evidence, he was also inviting the jury to disbelieve what D2 said to the police when being arrested. In essence, the prosecutor was telling the jury that the defendant downplayed his role in the attack and that the jury without his evidence was deprived of the truth and that they did not know D2’s story.

12.  Those remarks were not only unnecessary but also improperly made.[3] They constituted material irregularities rendering the order of a retrial.

13.  Further, I do not think that Au Yeung Lai Hung Doris assisted the prosecution much. In Au Yeung Lai Hung Doris, it was held that if very shortly before the trial commenced, the prosecutor informed the defence of an amendment to the indictment or new evidence (including witness statements) which should have been adduced earlier, that such delay might constitute an improper act or omission. In essence, the court had to examine the factual matrix of each case individually.

14.  In view of the above, D1 should have the costs for the first trial in relation to the murder count, excluding the costs for the voir dire. The unsuccessful challenges to the admissibility of the video recorded interview and the video reenactment would not be accorded to D1 as they were totally unnecessary. It was further manifested in the absence of any challenge to their admissibility in the second trial. The Court of Final Appeal held in HKSAR v Chan Kam Ching[4] that the Court had the power to deprive an accused or appellant of a portion of the costs if much time was spent on advancing “unmeritorious or unarguable points” during the proceedings.

15.  D1 stood trial for three separate counts, murder was just one. As the case arose out of a group attack on various victims, there were substantial overlapping facts and evidence across all three counts. In the absence of any agreement, the costs should be taxed.

(ii)  Preparation costs in relation to the murder count and (iii) costs of the second trial in relation to the murder count.

16.  These two headings could be considered together.

17.  Following the acquittal of D1’s murder count, D1 sought the costs in relation to the preparation of the murder count for both the first and the second trial and the actual defence in the second trial.

18.  It was not disputed that as early as May 2023, D1 had instructed his solicitors to write to the Department of Justice offering a plea to manslaughter. That offer was however rejected.

19.  On 5 February 2024, D1 indicated his guilty plea to manslaughter in the committal proceedings. D1 also pleaded guilty to manslaughter during the arraignment on the first day of the first trial.

20.  It is trite law that where a defendant is acquitted of a charge, the court should normally make a costs order in favour of the defendant pursuant to S5 of the CCCO unless there is positive reason.

21.  In Tong Cun Lin v HKSAR[5], it was held, in dismissing the appeal that:

“Governing principle

(1) As s.73A(1) was modelled on the Criminal Cases Act 1973, the Practice Directions given by the English Court of Appeal should be followed in Hong Kong as a guide to applications for costs by successful defendants.

(2) In principle, an acquitted defendant should normally be compensated out of public funds for the costs incurred in defending the charges. In considering whether, despite that general rule, he should be deprived of all or part of his costs, the judge must look at his conduct generally, so long as such conduct was relevant to the charges faced.

(3) Here, conduct most relevant was D’s conduct during the investigation and at the trial. These were to be considered together with the strength of the case against D and the circumstances under which he came to be acquitted. In the circumstances, the Judge had exercised his discretion impeccably.”

22.  In HKSAR v Wu Wing Kit[6], the Court of Appeal, applying the principle in Tong Cun Lin emphasised that where positive reasons existed, such as the defendant’s conduct bringing suspicion upon himself, the court might make a different order.

23.  This court gave a brief summary regarding the attack on the deceased in D1’s reasons for sentence:

“In the small hours on the 6 October 2020, verbal disputes between the bouncers and the customers of the N1 Bar at Austin Road, Tsim Sha Tsui, erupted into physical pushing and shoving. The bouncers and customers belonged to 14K and bosses of the bar, two triad societies respectively. One of the bosses of the bar, a Wo Shing Wo member, called for reinforcement.

After their arrival, the dispute quickly escalated into objects being used and thrown. CCTV camera installed at the bar captured the incidents. The footage also captured the number of Wo Shing Wo and the aggressiveness of the Wo Shing Wo members. Not long after the arrival of the Wo Shing Wo, the customers and the Wo Shing Wo boss decided to come out of their temporary safe sanctuary of one VIP room and attack the bouncers. CCTV also captured the one-minute-or-so attack by the Wo Shing Wo members which subsequentially led to the demise of the deceased.

Shortly before the attack, one could see the two groups were temporary and relatively at peace with each other. Fingers were pointing. No doubt foul languages and accusations might well have been exchanged. The attack started with a bottle being thrown by a member of the Wo Shing Wo. Then the other members of the Wo Shing Wo charged forward and started to throw objects at the bouncers, including the deceased, both from in and out of the bar table area. Among all the objects thrown, one wine bottle hit the forehead of the deceased and he instantly collapsed.

One could see from the autopsy report that the wine bottle caused a depressed, fractured skull with multiple skull fragments. In other words, the throw was a very forceful one. The attack, however, did not stop. After the collapse of the deceased, D1 and D2 continued their attack on the deceased. Both of them used, seemingly, beer jugs in attacking the deceased.

Having listened to the evidence from the forensic pathologists, this court has little doubt that at the time the deceased collapsed and the attack by both D1 and D2, the deceased was still alive. The subsequent attack by D1 and D2 on the deceased repeatedly and forcefully pointed to the fact that both D1 and D2 indeed wanted to inflict very serious harms on the deceased.”

24.  In summary, the attack by D1, after the collapse of deceased who was still alive at the time, which led to serious external and internal injuries on his spleen, fully justified the charge of murder. The justification could also further be seen in light of D1’s conviction of the two counts of wounding with intent where the attack was on two other bouncers immediately after. The charge of murder was fully justified and D1 no doubt had brought suspicion on himself.

(iv.)  Certificate for Three Counsel

25.  In Wu Wing Kit, the Court of Appeal held that:

“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, 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:

‘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).’ ”

26.  The present case involved nothing exceptional. The attack was captured on CCTV camera and indeed involved a lot of CCTV footage viewing, that however was not uncommon in criminal case of this kind.

27.  No complex legal argument was involved. The whole case turned on factual evaluation of the evidence. The fact that the prosecution employed three counsel was just one factor to be considered. However one ought to bear in mind the fact that the prosecution initially prosecuted a total of 8 defendants, each faced with 4 charges. The number of defendants and the charges posed a different dimension for the prosecution.

28.  On the contrary, D2 who faced one more charge than D1 was only represented by one counsel. The evidence against D2 in terms of CCTV footage viewing was just as much as D1. D2’s counsel had done his job no less effectively and efficiently than any others. In my view, this case did not justify two, not to mention three counsel.

29.  For the above reasons, it is ordered that the costs for the first trial in relation to the murder count, excluding the costs for the voir dire, be to the D1, to be taxed if not agreed, the application for costs under other headings be refused.