A v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

FACC No. 9 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCCM NO. 8 OF 2009)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ:

1.  This is the judgment of the Court on costs.

2.  On 13 November 2012 the Court unanimously dismissed the appeal brought by “A” against the Commissioner with an order nisi that the appellant pay the costs of the appeal and liberty to lodge submissions on costs.  Such submissions have now been received.

3.  The Commissioner seeks an order for the costs of and occasioned by the appeal, including the costs of (i) the application for a certificate before Pang J; (ii) the leave application before the Appeal Committee; (iii) the ad hoc admission of Ms Clare Montgomery QC; (iv) the substantive appeal; and (v) the submissions on costs.  He seeks a certificate for two counsel in respect of items (i) and (ii) and one for three counsel in relation to (iv).

4.  The appellant submits that there should only be an order for costs of the appeal, not “costs of and occasioned by” the appeal and that there should only be a certificate for two counsel covering Ms Montgomery QC and Ms Vinci Lam for the substantive hearing of the appeal.  

5.  We consider the Commissioner’s claim for the costs of items (i) to (v) to be well-founded.  It is the general practice of the Court, in the absence of special circumstances, to treat the costs of the applications leading to the substantive hearing (items (i) to (iii) in the present case) as costs in the appeal.  The Commissioner should therefore have those costs in line with the outcome of the appeal.  The respondent rightly acknowledges that he cannot resist an order to pay the costs of the appeal (item (iv)). Since the respondent’s attempt to resist the costs orders sought has failed, he should pay the costs of the written submissions (item (v)).

6.  Nor do we consider that a certificate for three counsel should be refused in relation to the substantive appeal.  It was an appeal raising constitutional points of significance to the practical operation of the ICAC, justifying the admission of overseas counsel on both sides.  The appellant was himself represented by three counsel – two leading and one junior counsel – at the hearing.  He also had the services of instructing solicitors. The Commissioner’s team, consisting of leading counsel and two junior counsel from the Department of Justice without assistance from any instructing solicitors, was reasonably commensurate with the demands of the appeal.

7.  We accordingly order the appellant to pay to the respondent the costs of and occasioned by the appeal including items (i) to (v) listed in paragraph 3 above, with items (i) and (ii) certified fit for two counsel and item (iv) certified fit for three counsel.