HKSAR v. CHAN CHUNG FAI

CACC 241/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 241 OF 2013

(ON APPEAL FROM HCCC NO. 402 OF 2012)

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DECISION ON COSTS

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Hon Lunn VP (giving the decision on costs) :

1. On 24 July 2014 we delivered judgment allowing the appeal, quashing the appellant’s conviction for murder and ordered a retrial on a fresh indictment. We made an order nisi that the appellant have his costs of the appeal, to be taxed if not agreed. We made provision for the parties to make further written submissions if they wished. They did so, and it is those submissions that we address now.

2. Mr Wesley Wong, on behalf of the respondent, opposes any order of costs in favour of the appellant.  In support of that submission, he invites the court to have regard to the Perfected Grounds of Appeal as drafted, amended and re-amended, together with the conduct of the appellant’s representatives in the preparation for and conduct of the appeal.  Alternatively, it is submitted that an award of costs in the appellant’s favour ought to be limited to the costs of the appeal “as incurred and incidental to Grounds 1 and 2 only.”  It was on those grounds that the appeal was allowed.

3. In opposing those submissions, Mr Philip Wong submitted that the fact that the appeal succeeded on Grounds 1 and 2 only and that the other grounds were “not made out” was not a basis to deprive the appellant of any of his costs.  Further, he suggested that the fact that he had been required to provide the court with no less than three versions of the Perfected Grounds of Appeal “did assist the parties and this Honourable Court to grasp the gist of the appeal”.

A consideration of the submissions

4. There is no dispute that normally a successful appellant is entitled to the costs of his appeal unless there are specific reasons for not making such an order.  Such reasons include the way in which those representing the appellant have prepared for and conducted the appeal.  As is apparent from the judgment of the court, we had difficulty in understanding exactly what argument was being advanced on behalf of the appellant under Grounds 1 and 2 of the Perfected Grounds of Appeal, albeit that when it was identified through an exchange with the court it proved to be a successful argument.  That was the case notwithstanding the fact that on 28 February 2014 Stock VP described the first version of the Perfected Grounds of Appeal as “almost incomprehensible” and declined to list the case for hearing.  The second version of the Perfected Grounds of Appeal, dated 12 March 2014, was treated in the same way by the judge.

5. Of course, as is the practice the appellant’s representatives had provided copies of the various versions of the Perfected Grounds of Appeal to the respondent at the time that they were filed with the court.

6. Ground 3 of the Perfected Grounds of Appeal dated 24 March 2014, the grounds relied on in the hearing of the appeal, attacked the judge’s ruling in the voir dire that had been conducted to determine the admissibility of the appellant’s out-of-court statements.  Ground 4 submitted that the judge had failed to give the jury appropriate directions as to their approach to the out-of-court statements of the appellant.  At the behest of those representing the appellant, a transcript of the evidence adduced in the voir dire, together with related documents, was included in the Appeal Bundle.  In his written submission dated 13 May 2014 Mr Wong supported those grounds of appeal.  However, at the hearing, as noted in our judgment, whilst not resiling from those grounds, Mr Wong declined to advance any oral arguments in support of them.  We determined them to be “bereft of any merit”.[1]

7. It is to be noted that about half of the respondent’s written submissions dealing with the substantive grounds of appeal was taken up in addressing Grounds 3 and 4.

Conclusion

8. We are satisfied that the appellant is not entitled to the costs incurred in the preparation of the two versions of the Perfected Grounds of Appeal rejected by the court nor is he entitled to any of the costs incurred in and incidental to the preparation and support of Grounds 3 and 4 of the Perfected Grounds of Appeal.  Accordingly, we vary the costs order nisi in favour of the appellant to give effect to that determination.