HKSAR v. LO CHUN NAM

DCMP 1664/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1664 OF 2001

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J U D G M E N T

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1. This case raises the issue of jurisdiction of the District Court to tax bills in criminal cases.

The Facts

2. The Applicant was a defendant in a magistrate's case. He lost his case all the way up to the Court of Appeal. On 20th December 2000, his conviction was quashed by the Court of Final Appeal and was granted costs in the Magistrates Court, the Court of First Instance, the Appeal Committee and the Court of Final Appeal. By Originating Summons filed on 13th June 2001, the Applicant sought extension of time to file his bill of costs for taxation. This was resisted by the Department of Justice. Although the Originating Summons did not state it, it was clear from the title to the action, the supporting Affidavit and the correspondence between the parties that the Applicant knew that the 3-month limit for filing the bill has expired by 19th March 2001and he was proceeding under rule 9 of the Costs in Criminal Cases Rules, Cap. 492 for extension of time. I dismissed the Originating Summons for want of jurisdiction on 29th June 2001 and I give my reasons now.

The Authority to Tax

3. Section 20 of the Costs in Criminal Cases Ordinance, Cap. 492 ("CCCO") provides as follows:

"(1) Where an order for costs is made by a court or a judge under this Ordinance the court or the judge may order that those costs be taxed."

(2) Where an order that costs be taxed is made under this section -

(a) by a magistrate or by the District Court, those costs shall be taxed by the Registrar of the District Court; ... "

(emphasis supplied)

4. Under s.2 CCCO, "court" includes a magistrate, the District Court, the Court of First Instance, and the Court of Appeal but does not include the Court of Final Appeal.

5. Hence, unless the costs order is made by a magistrate or the District Court, the District Court Registrar has no jurisdiction to tax the bill even if the costs involve proceedings in the magistrate's court or the District Court. This is logical because the CCCO was enacted before the Court of Final Appeal came into existence. That Ordinance could not have contemplated the taxation of bills pursuant to orders of the Court of Final Appeal.

6. Moreover, the Court of Final Appeal has its own system for awarding costs and ordering taxation. That is governed by s.43 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which provides as follows:

"Costs, including costs in the courts below or before a magistrate, shall be paid by such party or person as the Court 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."

Registrar in that context is the Registrar of the Court of Final Appeal.

7. Accordingly, on the question of authority to tax, the test is not where the proceedings for which costs are claimed were conducted but which court made the costs order.

(i) If the cost order is made by a magistrate or the District Court, the District Court Registrar has power to tax those costs.

(ii) If the cost order is made by a magistrate or the District Court and upheld by the Court of Final Appeal, it is arguable that the District Court still has power to tax the costs limited to those proceedings in the magistrate's court or the District Court.

(iii) If the Court of Final Appeal grants a completely fresh order for costs covering proceedings belowit is the Registrar of the Court of Final Appeal who , will have power to tax those costs.

8. Based on the above reasoning, since it is the Court of Final Appeal who ordered costs in the magistrate's court in favour of the Applicant, it is the Registrar of the Court of Final Appeal who should tax the present bill. It follows that this court has no jurisdiction to grant extension of time under the CCCO. I have considered whether or not I can transfer the application to the Court of Final Appeal. Regrettably, the District Court Ordinance does not empower me to do so. I therefore dismissed the application for want of jurisdiction.

Costs

9. The Department of Justice has urged upon me to grant an order for indemnity costs. It relied on the authority of Nintendo Co. Ltd. v. The World Camera and Radio Co. Ltd & others [1999] 2 HKLRD 199. In that case, the Defendant took a technical point which the court considered time wasting, plainly wrong, and not intended to decide the issue between the parties. The Court of Appeal therefore awarded costs to the winning party on an indemnity basis. It appears to me that it was the unreasonable conduct of the paying party in that case that resulted in the cost order made. It did not lay down the general principle that once a party loses the case on a legal point, costs on indemnity basis would follow.

10. In the present case, it is of course regrettable that 4 years since the implementation of the Hong Kong Court of Final Appeal Ordinance, Cap.484, some solicitors, law costs draftsmen and recently in one case the Department of Justice as well, are still not aware of the provision for taxing authority in that Ordinance. Even in the present case, the objection to jurisdiction was not taken up by the Department of Justice at the call-over hearing for the bill on 24th April, 2001 but only until about 20th June, 2001. I have not overlooked the 9 days' interval between the letter of the Respondent dated 20th June 2001 in which the jurisdiction question was raised and so the Applicant had ample time to withdraw his application. Although the Applicant started the application for extension of time in the wrong court, I do not consider his conduct so culpable as to justify any penalization in costs beyond a normal order. Having considered all the circumstances, I exercised my discretion to order only party and party costs.