HKSAR v. NANCY ANN KISSEL

CAC C 66/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 66 OF 2012

(ON APPEAL FROM HCCC NO. 55 OF 2010)

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Hon Chu JA giving the Decision of the Court:

1. On 3 December 2013 we gave judgment granting an extension of time to the applicant to apply for leave to appeal against the conviction of murder and dismissing her application.

2. By letter dated 9 December 2013, the respondent applies for the costs of the appeal to be paid by the applicant.

3. On 10 December 2013, Yeung VP directed that the respondent’s application be dealt with on paper and also gave directions on the filing of submissions.  The respondent and the applicant had since lodged written submissions on the application.

4. The application for costs is brought under section 13 of the Costs in Criminal Cases Ordinance, Cap. 492, the relevant part of which reads:

“Where a defendant unsuccessfully-

(a) …

(b) appeals to the Court of Appeal against-

(i) his conviction of an offence or any other finding or verdict made in respect of him; or

(ii) sentence; or

(c) applies to the Court of Appeal for leave to appeal against any of the matters referred to in paragraph (a),

and the judge or the Court of Appeal is satisfied that the appeal or the application, as the case may be, is or was without merit, the judge or the Court of Appeal may order that costs be awarded to the prosecutor.”

5. Section 15 further sets out the general principles on the amount and assessment of costs to be awarded as follows:

“In any criminal proceedings-

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;

(b) a court or a judge may have regard to any assessment laid before it or him for their assistance by any party to the proceedings of the amount of costs properly so incurred by any such party;

(c) an order as to costs shall be such as a court or a judge considers just and reasonable;

(d) the amount to be paid in pursuance of an order as to costs shall, unless an order for taxation is made under section 20, be specified in that order;

(e) the question of whether or not an order as to costs ought to be made in respect of any expenses properly incurred by any party to the proceedings in the course of the proceedings, including any proceedings preliminary or incidental thereto, may be adjourned until the end of those proceedings;

(f) a court or a judge may take into account any other order as to costs which has been made in respect of those proceedings.”

6. The respondent has referred us to a number of authorities in which this court awarded costs to the prosecution having taken the view that the grounds of appeal are wholly devoid of merits: HKSAR v. Siu Yin Ping & Anor (unreported) CACC 138/1988; HKSAR v Wong Shiu Yee (unreported) CACC 286/2000; HKSAR v. Chan Chin Hung Anders & Anor (unreported) CACC 163/2003; HKSAR v. Wong Chun Wah (unreported) CACC 74/2012.

7. It is common ground that in exercising the power under section 13, the courts shall also have regard to the financial means of the defendant and a costs order should be one that the defendant is able to pay: R v. Nottingham Justices, ex parte Fohmann (1987) 84 Cr App R 316 and R v. Northallerton Magistrates’ Court, ex parte Dove (1999) 163 JP 657.  It is for the defendant to disclose such data relevant to his financial position as will enable the court to assess what he can reasonably afford to pay.  In the absence of such disclosure the court may draw reasonable inferences as to his means from the evidence before the available evidence and all the circumstances of the case: R v. Northallerton Magistrates’ Court, ex parte Dove at 664B-C applied in HKSAR v. Lui Kin Hong Jerry (No 2) [2001] 2 HKC 513, at 531B-D.

8. The respondent submits it is appropriate to make a costs order against the applicant because her application for leave to appeal is unmeritorious and that she has failed to satisfy the court that she does not have the financial means to meet the costs order. Alternatively, the respondent argues that the applicant should be ordered to make a contribution to the respondent's costs.

9. The applicant opposes the application, contending that her appeal is not devoid of merits and that she has no means to satisfy any costs order made against her.  Mr Colin Cohen who acted for the applicant in her application for leave to appeal had made two affidavits in support of the latter contention. It is further argued on the applicant’s behalf that given her physical and mental state, to impose a costs order against her will cause undue hardship and is oppressive.

10. On the question of the merits of the appeal, both counsel had in their written submissions discussed in some details the applicant's grounds of appeal with a view to demonstrating that they are, in the case of the respondent, unmeritorious, or, in the case of the applicant, not devoid of merits.

11. We had in our judgment of 3 December 2013 given reasons why we consider the grounds of appeal fail.  We will not repeat them here.  We need only say that the matters raised in the grounds of appeal had either been argued and properly considered by the trial judge or put to the jury for consideration.  The evidence against the applicant in the case is overwhelming.  Despite the able submissions of counsel, we have not been persuaded there are merits in the grounds of appeal.  Accordingly, as a matter of principle, the respondent is entitled to seek costs of the appeal against the applicant.  

12. As to the financial ability of the applicant to satisfy any costs order, Mr Cohen mentioned in his affidavits that the applicant had received two sums between 2010 and 2012. The first was a payment from the prosecution pursuant to the costs order made by the Court of Final Appeal when overturning the applicant’s conviction in the first trial.  The second was a settlement sum in respect of a civil claim.  It was explained that the first sum had been used to settle the legal fees of the first trial, the stay application and the retrial, and the second payment was used to pay for the fees for the admission of the applicant’s leading counsel for the appeal and counsel’s fees for settling the grounds of appeal and preparation and appearance in the appeal as well as the expenses for obtaining court transcripts.  It was said that only a few thousand dollars is left.  It was further said that one of the defence experts and solicitors and junior counsel for the applicant in the appeal and the subsequent proceedings acted for her on pro bono basis while the fees of leading counsel and another expert were at discounted rates.  Mr Cohen also stated that the applicant’s claims to the insurance policies taken out by the deceased were forfeited by law as a result of her conviction.[1]  Mr Cohen further deposed that the applicant’s savings had been used to settle her legal costs and as she has been incarcerated for nearly 10 years she has no income or assets. 

13. The respondent submits that the affidavits are unsatisfactory with regard to what financial resources are currently available to the applicant.  It is pointed out that the applicant herself has not personally deposed to her financial means.   

14. We recognize the force in the criticism that the financial means of the applicant is a matter within the personal knowledge of the applicant and not that of her solicitor.  The proper course is for the applicant to depose to her financial means.  No explanation has been proffered as to the applicant’s failure to do so. 

15. That notwithstanding, we take note of the fact that the applicant has been incarcerated for almost 10 years and that she has been privately represented throughout the two trials and the subsequent appeals.  The costs incurred will be quite substantial.  We further accept what Mr Cohen said with regard to how the two sums received by the applicant had been utilized.  The fact that her legal representatives are prepared to act on pro bono basis is some indication that the legal representatives are satisfied that the applicant is not in a position to afford their fees.  Taking all these matters into consideration, we are prepared to proceed on the basis that any resources available to the applicant are probably insubstantial.    

16. The court’s power to make an order under section 13 is discretionary.  Having regard to the view we take of the applicant’s likely financial position and the rather unique circumstances of the case, including the sentence imposed on the applicant and her current health conditions, we are of the view that the applicant should not be ordered to pay the costs of the appeal.  Accordingly, we refuse the respondent’s application.