HKSAR v. WAI SAU CHEONG

HCMP 5074/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 5074/2002

(ON APPEAL FROM ESCC 2889 OF 2002)

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JUDGMENT

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1. The appellant is appealing against an order of costs by a magistrate out of time.

The Facts

2. The appellant was the 3rd defendant facing charges of disorderly conduct and common assault before a magistrate in the case ESCC 2889 of 2002. At first appearance, the appellant was represented by the Duty Lawyer Service ("DLS"). He and 4 co-defendants pleaded not guilty to the charges. There were 8 prosecution witnesses. The case was adjourned for trial to 6 November 2002 at 9:30 a.m. with the next day also reserved.

3. On 6 November 2002, all co-defendants were represented by the DLS except the appellant. The magistrate asked the appellant whether he was ready to start. The appellant said he wanted a lawyer, but the DLS did not contact him. The case was stood down for him to approach the DLS. Instructions were taken from him and eventually at about 3 p.m., the appellant was represented by the DLS. By then, the magistrate was in the middle of another case and the appellant's case had, so to speak, missed its slot. The magistrate asked the appellant to show cause against an order for costs.

4. The Duty Lawyer submitted that the appellant was earlier involved in another case where he was represented by the DLS and on that occasion he was contacted to give instructions. He was under the impression that once a file was opened, he would be taken care of. He thought as his involvement in the present case was minimal, it would suffice if he gave instructions on the morning of the trial and he would be represented. The Duty Lawyer explained that it had taken so long to take instructions due to manpower problem, and then due to the diary problem of the court, the case had to be re-fixed.

5. The magistrate was of the view that the appellant started the whole course of events by not approaching the DLS. She made the following decision and order:

"I am satisfied that D3 caused the adjournment. 8 witnesses have been sitting outside the courtroom all day. Tomorrow has been reserved for this case as well. It is a complete waste of time and taxpayers' money. I make a costs of $3,000, but I am prepared to give you time to pay."

6. The magistrate ordered that the $3,000 shall be paid in 2 instalments of $1,500 on 6 December 2002 and 6 January 2003.

7. On 16 December 2002, the appellant was convicted upon his own plea of the charges and was sentenced to 28 days imprisonment. He is now serving his sentence.

Extension of the time limit

8. Under rule 4(3) of the Costs in Criminal cases Rules (Cap.492A), an appeal must be instituted within 21 days of the costs order.

9. The time limit expired on 27 November 2002 in this case. The Originating Motion was filed on 5 December 2002. Under rule 4(5) of Cap.492A, the time limit can on application, for good reason, be extended before or after it expires.

10. The appellant explained that he went to the High Court to lodge the appeal on 26 November 2002. He could not pay the filing fee of $1,040 as he was on comprehensive assistance. He could only pay the fee on 5 December 2002.

11. The respondent quite properly conceded that there is good reason to extend the time.

Procedure upon appeal

12. By virtue of rule 4(2) of the Costs in Criminal cases Rules, Order 55 of the Rules of the High Court (Cap.4A) applied to this appeal. Under Order 55, rule 7, the court shall have power to receive further evidence on questions of fact, and the evidence may be given in such manner as the court may direct, either by oral examination in court by affidavit, by deposition or in some other manner. Hence, the appeal is by nature of a re-hearing.

Costs unnecessarily or improperly incurred

13. Under section 17 of the Costs in Criminal Cases Ordinance (Cap.492):

"Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings."

14. Under section 15 of the Costs in Criminal Cases ordinance:

"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."

15. In considering an award of costs in any criminal proceedings the court should bear in mind the general principle that :

(1) the costs shall be compensatory and not punitive;

(2) such sum shall, as it appears to the judge or magistrate, be reasonable sufficient to compensate any party to the proceedings for any expenses properly incurred;

(3) the order shall be just and reasonable.

16. And for costs unnecessarily or improperly incurred, the relevant considerations are :

(1) costs have been incurred by a party;

(2) as a result an unnecessary or improper act or omission by or on behalf of the other party,

(3) all parties shall be heard;

(4) the court may order all or part of the costs so incurred to be paid by the other party.

17. The appellant originally alleged that it was the magistrate who asked him to obtain representation from the DLS. Upon being read the transcript of the proceedings, he agreed that it was him who wanted representation as all his co-defendants were represented and he did not want to be disadvantaged. He agreed that he thought giving instructions in the morning would be sufficient. He agreed that he had previous experience in dealing with the DLS.

18. The respondent submitted that the appellant's failure to give instructions in time was an unnecessary omission. I agree. The respondent conceded that the magistrate did not hear all parties on 6 November 2002 and she had no idea as to what the costs incurred by the respondent was. The respondent conceded that the order is insupportable, but sought to adduce further evidence as to the costs incurred. I acceded to the application.

19. The respondent submitted that costs means legal costs incurred by the party, and not costs of the witnesses. At any rate, witness expenses in a criminal case are paid by the court.

20. The respondent agreed that the prosecutor's day in court was not wasted because she took up another case. However, as this case was adjourned, the cost of preparing for trial was wasted and the next prosecutor will have to incur duplicated costs. I agreed with this analysis.

21. The respondent submitted that due to the number of defendants and witnesses, the preparation is 2 to 3 hours. The court prosecutor's wage cost is about $800 to $1,000 per hour. Hence the costs unnecessarily or improperly incurred amounted to $2,000 to $3,000.

22. I have looked at the brief facts of the case. It is a simple case of one defendant urinating in the street, and upon being accosted by the police, his friends gathered to cause a scene, and more policeman arrived to make arrests. I say the reading time would be no more than an hour. The costs incurred should be at most $1,000.

Means of the accused

23. It is well established that orders for costs should not be made which are beyond the means of the accused (see R v Maher (1983) 5 Cr App R (S) 39 per O'Connor LJ at p.42). In R v Nottingham Justices, ex parte Fohmann (1987) 84 Cr App R 316, Otton, J, delivering the judgment of the Divisional Court, held at p.319 that a costs order should be made within the means of the person so ordered, such that he could pay off within a reasonable time, within about 12 months.

24. The respondent agreed that the means of the accused must be taken into account in awarding costs in a criminal case.

25. The appellant said he received $1,800 per month on comprehensive assistance, with separate rent assistance. He spent about $900 per month on food. The only other necessary expense was travelling for job interviews fortnightly as ordered by the Social Welfare Department. He agreed that he could spare $500 for the costs order.

26. In all the circumstances, I am of the view that an order to pay part of the costs incurred by the respondent in the sum of $500 is just and reasonable.

Order

27. I make the following order :

(1) The costs order of the magistrate on 6 November 2002 is set aside;

(2) The appellant do pay costs of $500 to the respondent in respect of costs unnecessarily or improperly incurred on 6 November 2002;

(3) There be stay of execution until 10 March 2003;

(4) There be no order as to costs in respect of the appeal.