HKSAR v. WONG TAK KEUNG

CACC 421/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 421 OF 2002

(ON APPEAL FROM DCCC NO. 528 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. This application has a tortuous history and has in the event ended up as an application for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that points of law of great and general importance were involved in a decision of this Court.

2. There came before us in November 2003 an application by this applicant for leave to appeal against conviction in the District Court for trafficking in dangerous drugs.  On 3 November 2003, by a judgment handed down, leave was granted and the appeal was allowed and a retrial ordered.

3. An application was subsequently made by the applicant for an order for costs in respect of both the trial in the District Court and the appeal.  We heard submissions at some length in relation to that application and there is available a full transcript of those proceedings, at the end of which the court said as follows:

“Having regard to the conduct of the applicant prior to the charge, to the original grounds of appeal, the success of the appeal and the basis of its success and the fact of the order of retrial, we make the following orders.  As to the costs of the trial below, there will be no order as to costs in the applicant’s favour.  As to the appeal, we shall order that the applicant shall have half his costs of the appeal, to be taxed if not agreed.”

4. That decision was rendered on 31 March 2004.  On 26 June 2004 a summons was filed seeking to make an application for leave to appeal to the Court of Final Appeal out of time against the costs order.  That was misconceived in that the correct form was a Notice of Motion and an application for a certificate that there were points of general and public importance to be certified; and this misconception was drawn to the attention of those acting for the applicant.  What then happened was that a Notice of Motion dated 15 October 2004 was filed stating that this Court would be moved for “a certificate for leave to appeal to the Court of Final Appeal on the grounds that a point of law of great and general importance was involved in the decision” as to costs.  Again there was involved error in that it is not for this Court to grant leave but merely, in an appropriate case, a certificate as to points of law.

5. The first point to be made is that the application for a certificate is considerably out of time.  It is not necessary to rehearse the details of the relevant provisions.  It suffices to refer to section 33(1) of the Court of Final Appeal Ordinance and to Practice Directions 2.2 and 4.3.  The requirements there stipulated have not been observed.  There is an affirmation from the applicant seeking to explain his delay.  We have read it but in our judgment the reasons provided do not constitute sufficient grounds for explaining that delay and the failure to follow the directions and, accordingly, the present application is refused on the question of time alone. 

6. We shall however say something about the substantive application itself, the question of time aside.  The questions of law which are suggested for determination by the Court of Final Appeal are these:

(1)	Whether a Court in exercising its discretion to refuse or partially refuse costs to a defendant should give reasons.
(2)	Whether a defendant in respect of whom a retrial is ordered should be permitted to defer his application for costs in relation to the appeal and original trial until the conclusion of the retrial.
(3)	Whether a new practice direction is merited by virtue of the English Practice Direction (Crime: Costs in Criminal Proceedings) (No. 2)
(4)	Whether the application of different criteria in the exercise of the Court’s discretion to award costs to a defendant in respect of whom a retrial is ordered is contrary to Article 10 of the Bill of Rights.
(5)	In what circumstances should a successful appellant be awarded his costs of his appeal and/or the costs of the trial to which the appeal relates.

7. We do not think that it can properly be said that these questions, or their intent, arise for certification or are involved in the decision which this Court gave.  It seems to us that the real complaint is that the reasons we gave were insufficiently clear and that our decision as to costs was in any event not just, and if there is merit in that complaint then the remedy for the applicant is to go to the Court of Final Appeal under the second limb of section 32(2) of the Ordinance.

8. As to the first question proposed, there was no determination by this Court that there was no requirement for the court to give some reasons.  It may be that the reasons we gave were very broad and not as clear or as helpful as they might have been.  We would only say that they followed full argument shown in the transcript, and it might be said that it was clear enough as to why we made the order we did.  Whether we exercised our discretion correctly or not is not a matter now for us to revisit or determine.

9. Nor does the second question arise for determination in this particular case as there was no application to us to defer the question of costs until the conclusion of the retrial.

10. The third proposed question, if we understand its intent correctly, is that the practice direction to which reference is there made now omits, as a positive reason for refusing costs, the fact that an appellant has been acquitted on a technicality; the suggestion is that the same approach should here be adopted.  Yet this again did not arise in this particular case.

11. The fourth question is directed, as we understand it, to the decision in R v Wai Wing-sang and Another, it being suggested by Mr Hemmings that the principles there set out are wrong as offending in their effect the provisions of the Hong Kong Bill of Rights Ordinance.  The discretion conferred upon the court by that decision is in the widest of terms, and we do not in the circumstances think it appropriate to grant a certificate on the basis suggested.  Nor do we think it arises from the circumstances of this case, given that the true attack is upon the merits of the exercise of our discretion.

12. For these reasons, treating the application as framed as an application for a certificate under section 32, we see no grounds upon which the questions could properly be certified in accordance with the requirements of the section.

13. It follows that, for both reasons given, the application for a certificate is refused.