HKSAR v. TSUI TACK KONG AND OTHERS

HCMA 289/2018

[2020] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 289 OF 2018

(ON APPEAL FROM ESS NOS 39227‑39230 OF 2015)

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DECISION ON COSTS

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1.  On 2 December 2019, this court made a costs order nisi in this matter in respect of the costs of the hearing on appeal and in respect of the trial below (“the Order”). That Order was made to allow all parties to be heard upon the issue. This has been done by way of written submissions. The 1^st to 4^th Appellants have submitted that this court has no jurisdiction to order them to pay the costs of the trial. This submission is supported by the Respondent in accordance with HKSAR v Hon Ming Kong (re: costs) [2014] 3 HKLRD 470. Accordingly, the Order of the court is varied to delete “and the trial below” from its Judgment.

2.  There remains extant an application to vary the Order further on the basis that the court had no grounds to order the Appellants to pay the costs of the appeal in the absence of a finding that the appeal was without merit.

The Power to Order the Costs of the Appeal

3.  The power to order costs against an unsuccessful applicant for leave to appeal against conviction (and/or sentence) is conferred by section 13 of the Costs in Criminal Cases Ordinance, Cap 492 (“the Ordinance”):

“Where a defendant unsuccessfully —

(a) appeals to a judge from any conviction, order or determination of a magistrate; or

(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.” (Emphasis added)

4.  Each applicant submits that the test to be applied for present purposes is “is or was without merit”as enunciated in HKSAR v Chui Shu Shing (2017) 20 HKCFAR 333 per Ribeiro PJ at §9, to mean “not reasonably arguable”.  He went on to say that “such a finding, though necessary, is not sufficient.”  By that he explained that a Judge must go on to apply the principles laid down by section 15 of the Ordinance which requires any sum awarded not to be punitive but rather to be compensatory in nature and effect.  There has been no argument before me as to this issue.  The argument turns wholly upon the submission that this court did not find the appeals either expressly or implicitly “without merit”.

5.  The trial concerned an accident upon a construction site.  It lasted 29 days, heard evidence from four expert witnesses and took into account several specialist reports upon which the expert witnesses relied.  The appeal bundle ran to over 12,000 pages and the Grounds of Appeal ran to 17 pages.  The appeal took place over some four days.  The Appellants were represented by leading counsel.  In order to do justice to the Appellants’ cases, the court had to master the arguments below about which this court commented[1]:

“There were a significant number of areas of dispute between the parties during trial, some of which advanced none of the party’s cases but took up a considerable amount of court time and intellectual energy.”

6.  The appeal followed a similar pattern.  The Grounds of Appeal were no less voluminous (and repetitive) given that the actual argument before the court, which was on the facts alone, was that the defence expert evidence should not have been rejected and the prosecution expert evidence should not have been accepted, with Ms Wong, on behalf of the 3^rd and 4^th Appellants, advancing an enhanced defence case, not previously put to the Magistrate.  The view of the court, after consideration of the evidence and of the submissions thereon, was provided at §52‑64 of the Judgment.  Importantly, the court said[2],

“There were a number of hypotheses from all four gentlemen, many of which were ruled out on the facts by the experts themselves or by other experts; some of which were still relied upon by the defence on appeal but which could not be maintained if the defence case in respect of KK Pang was correct. Nothing will be served by explaining that in detail here. They were rightly rejected.” (Emphasis added)

7.  The 3^rd and 4^th Appellants take issue with the fact that the phrase “without merits” or “not reasonably arguable”, have not been expressly relied upon within the Judgment.  With respect, this was implicit within the tenor of the Judgment when read as a whole.  The Court does not see how a phrase such as “They were rightly rejected”, can be misconstrued as anything other than without merit.  If that were not enough, the Court went on to say:

“The magistrate listened very carefully to them all and was at pains to ensure that he had understood each theory and its premise. It was not necessary for him, in rejecting any one (or several) of them to explain his reasoning in detail in his Statement of Findings. The magistrate made it clear that whilst he accepted some of the evidence of three of the expert witnesses, he had chosen to rely upon the opinion of KK Pang. It was open to him to do so, as it is for this Court.”

and

“This Court notes that the appellants’ argument often relied upon the phraseology of the magistrate in his Statement of Findings which, upon closer inspection of the transcript, was not made out when taken in context of the whole of the evidence given and the discourse between witnesses, bench and bar, which is the inevitable consequence of cases involving expert witnesses.”

8.  Rogers VP in Chong Wai Lee Charles & Anor v Insider Dealing Tribunal & Anor CACV 96/2007, reiterated that it is not the duty of a court or tribunal necessarily to mention each and every argument that is considered, particularly if it concluded them to be without merit.  Some arguments are so unmeritorious that it is better that they are left unmentioned.  In this case, it may be that other arguments were tangential to the issues to be decided and/or were not determinative.  It cannot be said that simply because some criticism can be laid at the door of a tribunal that it necessarily follows that such criticism is determinative of an appeal and that costs may therefore not follow.  There was no finding by this court on appeal upon a central issue which was in essence any different from that of the Magistrate.  The fact that this court may have come to the same conclusions by a different route does not necessarily indicate that the Magistrate was wrong in reaching the conclusions in the manner in which he did.  This court considered the matter afresh.  It did not find, as submitted by the 3^rd and 4^th Appellants, that “the Magistrate should not have made those findings in the way that he did” and it is wrong to suggest that it did.  Indeed, the court went to some lengths not to do so and was at pains to commend the Magistrate where appropriate e.g.

“The magistrate went to some lengths to give due credit to the expertise of all four expert witnesses[3]”;

“The magistrate listened very carefully to them all and was at pains to ensure that he had understood each theory and its premise. It was not necessary for him, in rejecting any one (or several) of them to explain his reasoning in detail in his Statement of Findings. The magistrate made it clear that whilst he accepted some of the evidence of three of the expert witnesses, he had chosen to rely upon the opinion of KK Pang[4].”

“In this case, the magistrate rejected the opinion evidence of both defence experts and, to some extent, also that of Dr Li. He did so after a considerable period of time listening to them and seeking clarification, which at times he did not receive[5].”

“On more than one occasion, the magistrate remarked upon their expertise in a positive manner and expressly relied upon it[6]”.

9.  The Court specifically found that it was not necessary to come to any finding on exactly how the inflow of water occurred or how it entered the site nor whether there was a conspiracy between the Appellants.  The fact that the Magistrate may have done so, does not avail the Appellants.  The top and bottom of the Court’s findings on appeal was that no part of their grounds were found meritorious.

Conclusion

10.  Stock VP (as he then was) said at §12 of Hon Ming Kong supra:

“Whether to make an order where an unmeritorious case has been advanced will depend on all the circumstances. Where, as in this case, a nine‑day hearing (and the extensive preparation for it) has been initiated upon a basis which in large part is unmeritorious and where there is no suggestion that the initiator is other than well‑placed to bear a costs order, it is difficult to see upon what basis the public purse should not be compensated.”

This was an appeal wholly upon the facts.  The issue raised by the Appellants was a simple one even if the underlying facts were more complex.  The defence submitted that the Magistrate should not have preferred the opinion of KK Pang.  The Appellants sought to explain why that was the case and essentially did so by reliance upon Ms Wong’s enhanced explanation of the case for the 3^rd and 4^th Appellants, which was adopted by Mr Duncan on behalf of the 1^st and 2^nd Appellants.  As the Court said previously, and despite her valiant efforts in this regard, that argument did not bear scrutiny even as set against the 3^rd and 4^th Appellants own criticisms of the hypothesis of KK Pang.  The factual basis of the appeal was indeed without merit and the Judgment explained why that was the case in as much detail as was necessary given the manner in which the Grounds of Appeal were drafted.

11.  Significant public resources were exhausted in this appeal, which appeared to be simply a repeat performance of the facts below with an attempt to widen the expert evidence whilst castigating the Magistrate’s use of language in his Statement of Findings. There is no reason why the Appellants should not equally as between themselves bear the costs of the appeal.  There has been no submission that the allocation of costs should be otherwise.

12.  Accordingly, the costs of this application and of the appeal to the Respondent are to be borne in equal shares between the 1^st to 4^th Appellants to be taxed if not agreed.