SHAM WING KAN v. COMMISSIONER OF POLICE

CACV 270/2017

[2020] HKCA 502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2017

(ON APPEAL FROM HCAL 122/2014)

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DECISION ON COSTS

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The Court:

1.  By the judgment handed down on 2 April 2020 (“the Judgment”), we allowed the respondent’s appeal and set aside the declaration granted by Au J (as Au JA then was) (“the Judge”) in HCAL 122/2014 that a police officer can conduct a search of the digital contents of a mobile phone (or a similar device) seized on arrest without warrant as authorized under section 50(6) of the Police Force Ordinance, Cap 232 (“Section 50(6)”) only in exigent circumstances.  We granted instead a declaration that a police officer can conduct such a search in accordance with the conditions set out at [218] of the Judgment and the power is compatible with article 14 of the Hong Kong Bill of Rights and article 30 of the Basic Law.

2.  Pursuant to our directions, the parties have lodged their written submissions on costs, which we have duly considered.  This is our decision on costs.

A.     The parties’ submissions

A1.    The applicant’s submissions

3.  Mr Hectar Pun SC,[1] for the applicant submitted that although this Court has “technically” allowed the respondent’s appeal, the applicant should be considered as “the substantial or overall winner” in the appeal because:

(1)  the applicant successfully upheld the general starting point that police officers must obtain a warrant before searching the digital contents of a mobile phone seized on arrest;

(2)  the real difference between the findings of this Court and the Judge only lay in the formulation of the exception and the manner in which the urgent search might be constitutionally permitted.  It was consistent with the applicant’s position that a warrantless search of the digital contents of a mobile phone seized on arrest could only be lawfully conducted “in circumstances of urgency”; and

(3)  the respondent’s position that “the common law power was not extinguished by Section 50(6)”[2] is a new point that was taken only on appeal.  In any event, the position upheld in the Judgment that a search of the digital contents of a mobile as a specie of the power of search by law enforcement officer incidental to arrest is governed by the common law instead of Section 50(6)[3] was not advocated by the respondent.

4.  Mr Pun therefore contended that by taking a broad brush approach, the respondent should pay the applicant 80% of the costs of appeal (after deducting the costs covered by the costs order made by another division of this Court on 23 October 2018, where the respondent was ordered to bear the costs thrown away by the adjournment that was to be fully borne by the respondent), to be taxed if not agreed, with certificate for two counsel.

5.  As to the costs below, the Judge awarded two-thirds of the costs to the applicant, to be taxed if not agreed, with certificate for two counsel.  Mr Pun submitted that since we rejected the respondent’s major contention in the appeal and the applicant is in fact the substantial or overall winner in the appeal, and the applicant did not raise any cross-appeal on any rejected grounds by the Judges, the costs order below should stand.

A2.   The respondent’s submissions

6.  Mr Jonathan Chang SC, for the respondent submitted that as we allowed the respondent’s appeal, the general rule that costs to follow the event should apply.

7.  Mr Chang submitted that although we did not rule in favour of the respondent on all of its arguments, the respondent is still the successful party in the appeal because:

(1)  A successful party should be determined by adopting the common sense approach i.e. by reference to the appeal as a whole based on the overall success of the winning party.

(2)  The respondent had successfully overturned the Judge’s judgment in particular his adoption of the doctrine of exigent circumstances.

(3)  The applicant and the 2^nd interested party failed to resist the appeal and they did not accept that the lower court judgment was wrong.

(4)  The respondent successfully maintained that the common law power of search incidental to arrest was not extinguished by Section 50(6) and may be exercised in accordance with the conditions set out at [218] of the Judgment.

(5)  Further, the applicant’s arguments were flatly rejected by us on the issue (a) if there is any residual common law power of search incidental to arrest in Hong Kong; as provided for in Section 50(6); (b) if the doctrine of exigent circumstances should be adopted in Hong Kong; and (c) whether discovery of evidence should form a basis for a warrantless search of the digital contents of a mobile phone seized upon arrest.[4]

8.  Mr Chang therefore asked for the costs of appeal (including the costs of the Respondent’s Notice dated 18 April 2018 filed by the applicant and the costs of these submissions) and the costs below to be paid by the applicant, to be taxed if not agreed, with certificate for three counsel.

9.  As to the costs against the 2^nd interested party, accepting our acknowledgment of the concept of “reasonable practicability” advocated by Mr McCoy[5], Mr Chang accepted a 30% reduction of the respondent’s costs of appeal vis-à-vis the 2^nd interested party.  Regarding the costs below, Mr Chang submitted that as “reasonable practicability” was not advanced before the Judge and by supporting the exigency exception that was ultimately rejected by us, the general rule of costs to follow the event should apply and the 2^nd interested party should pay the respondent’s costs below with certificate for three counsel.

A3.    The 2^nd interested party’s submissions

10.  Mr Albert NB Wong, counsel for the 2^nd interested party, submitted that as the arguments advanced by Mr McCoy in particular on the “concept of reasonable practicability” and “the proportionality requirement” in case of mobile phone searches were accepted by this Court, the 2^nd interested party is the ultimate successful party in the appeal and should be entitled to costs.

11.  Mr Wong contended that the respondent’s application for costs reflected a distorted narrative of the appeal proceedings and the concession of 30% of costs of appeal is an artificial gesture for seeking costs for an extra counsel as the respondent’s own Notice of Appeal only sought a certificate for two counsel only. 

B.     Our views

B1.    Between the applicant and the respondent

12.  We first deal with the costs between the applicant and the respondent.

13.  The starting point in the court’s exercise of discretion on costs is the normal rule of costs following the event, which means that the successful party is ordinarily entitled to costs. 

14.  Having considered the rival contentions of Mr Pun and Mr Chang, we agree with Mr Chang.  Looking at the matter overall, including how the appeal was argued and its result, the respondent has substantively won the appeal.  The general rule of costs following the event applies.  The respondent shall have the costs against the applicant.  In view of the complexity of the legal issues involved, we allow a certificate for two counsel. 

15.  As to the costs below, having regard to how the matter was argued and decided by the Judge, and how it was resolved by us, we think it is fair to make no order as to costs between the applicant and the respondent.

B2.    Between the respondent and the 2^nd interested party

16.  Regarding the costs between the respondent and the 2^nd interested party, as mentioned at [183] of the Judgment, we accepted Mr McCoy’s position that the common law in Hong Kong on mobile phone search should develop by reference of the concept of “reasonable practicability” and the “proportionality requirement” which formed the key findings in the Judgment.

17.  At the same time, the respondent had to come to this Court to overturn the judgment by Au J and we did not accept the formulation of Mr McCoy in full.

18.  In the circumstances, we consider it is appropriate to make no order as to the costs of the appeal between the respondent and the 2^nd interested party.

19.  For the costs below, the Judge ruled that given the 2^nd interested party’s submissions generally and materially overlapped with the applicant’s, it is not justified and fair to order two sets of costs against the respondent.[6]  He thus made no order as to costs between the respondent and the 2^nd interested party.  We agree and will not disturb the Judge’s order.

C.      Orders

20.  In consequence, we make the following orders:

(1)  The applicant do pay the respondent’s costs of the appeal (including the costs of the Respondent’s Notice dated 18 April 2018 filed by the applicant and the costs of submission on costs), to be taxed if not agreed, with a certificate for two counsel;

(2)  The Judge’s order of costs between the applicant and the respondent below be set aside and be substituted with an order of no order as to costs;

(3)  There be no order as to costs between the respondent and the 2^nd interested party in the appeal (including the costs of the Respondent’s Notice dated 17 April 2018 filed by the 2^nd interested party and the costs of the submissions on costs).

(4)  The costs order made by the Judge between the respondent and the 2^nd interested party in HCAL 122/2014 do stand; and

(5)  The applicant and the 2^nd interested party’s own costs of the appeal and below be taxed in accordance with legal aid regulations.