HKSAR v. LEUNG KAI CHUNG

CACC 96/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 2000

(ON APPEAL FROM HCCC NO. 113 OF 1999)

____________________________________

_______________________________

________________

J U D G M E N T

________________

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

1 By a judgment dated 20 November 2001 we set aside the appellant's conviction on a count of conspiracy to traffick in dangerous drugs and we ordered a re-trial. He now seeks an order for costs of the appeal and of the trial at first instance. The respondent had intimated by letter that the application would not be opposed and suggested an order in the absence of a hearing, but that was not a course which we considered appropriate, and although we understand that it was a course suggested with a view to saving further costs, we nonetheless asked to hear counsel upon the application.

2 The application is not made pursuant to the provisions of the Costs in Criminal Cases Ordinance, because the offence with which the appellant was charged was said to have taken place before that Ordinance came into effect (see section 25). Accordingly, pre-Ordinance principles apply, and we have been helpfully referred to R v Kwok Moon-yan [1989] 2 HKLR 396 and R v Man Wai-keung [No. 2] [1992] 2 HKCLR 207.

3 We have been concerned about the extent to which the appellant should have his costs, particularly of the hearing below, in light of our view, which one sees expressed at page 30 of our judgment on the appeal, that leading counsel for the appellant contributed to the misfortune of which the appellant has successfully made use upon the appeal.

4 The appeal succeeded on two bases: first, the text of immunities granted orally by prosecuting counsel; and secondly, the fact that witnesses were told that they need not answer questions incriminating themselves even though, given the immunities, they ran no such risk. We have dealt in the judgment with the root, or genesis, of the problems - the fact, in particular, that no immunity was given before the proceedings commenced - and with the loose way in which immunities were then granted once the issue was raised; and it is an extraordinary fact that prosecuting counsel was actively assisting the process by which the incongruity of immunity and warning was developed.

5 All that said, we note too that it was counsel for the appellant who first raised the question of the warning and pressed for a stronger warning and, more particularly, that once the immunity was given, never suggested that the warning was no longer necessary. Even when he said he was in difficulty as a result of the warning, and he never particularised that difficulty, he failed to suggest that the warning was now otiose. He also failed to point out in relation to PW1's exercise of his supposed right not to answer questions, that his refusal was not based on any suggestion that he would be incriminating himself but rather on the basis that he did not want to alert others. Furthermore, although he complained about the informality of the warning, he never once complained about its text.

6 In the absence of any complaint by leading counsel at trial about the irregularities which stared him in the face, other counsel now comes before the Court of Appeal and complains about the self same matters. True it is that we have found that the complaints are well made, but when it comes to costs we think it would offend the justice of the matter were the appellant to receive all his costs in the court below. We recognise that the mess that arose was predominantly the result of errors in not granting immunity in proper form well before the trial, and that that lies at the door of the prosecution, and in the encouragement by prosecuting counsel of the incongruity which arose. But that does not, in our judgment, absolve experienced defence counsel from taking the points which presented themselves.

7 We think that the appellant should have his costs of the appeal out of the public revenue, to include the costs of today, but that he should have only 75% of the costs of the Court of First Instance proceedings, such costs to be taxed if not agreed; and that is the order we make. This order does not apply to the hearing on 25 October 1999 because it would appear that the cause of the adjournment by at the door of the appellant; but since we are not seized of sufficient information about that, we make no order in respect of the costs of that day.