THE QUEEN v. TSUI CHING KWAI

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J U D G M E N T

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Costs Application

Silke, V.P. :

1. Tsui Ching Kwai had on 11th May 1989 his appeal against his conviction allowed. He had been convicted, on 24th October 1988, on a charge of wounding with intent contrary to section 17 of the Offences Against the Person Ordinance, Cap.212. At that time no application was made for any award of costs as provided for under the provisions of section 83XX of the Criminal Procedure Ordinance, Cap.221.

2. We have however been told that, immediately upon the successful determination of the appeal, from the Applicant's point of view, instructions were given and the Registrar was informed of the intention to apply but no specific application was made direct to the Court.

3. The costs for which Mr. Macrae seeks orders relate first to the preliminary proceedings in the Magistrates Court; then to an application for bail pending trial; then to the trial in the District Court; then to an application for bail pending appeal and, finally, to the costs of the appeal itself which we take it is intended to include today's argument.

4. The application is opposed first of all on lack of jurisdiction and secondly on its merits.

5. On jurisdiction: it is suggested that this Court is now functus officio and does not have jurisdiction to entertain an application made to it subsequent to the determination of the appeal. In a judgment delivered yesterday The Queen v. Kwok Moon Yan and The Queen v. Lok Man Chiu, Consolidated Applications 347/1988 and 500/1988 (unreported) this Court said:

"If there is to be an application for costs then that application should be made upon the judgment of the Court of Appeal being pronounced and in respect of all proceedings for which the order is sought. For the future counsel would be well advised to arm themselves with at least tentative instructions and, if the decision of the Court should come as a surprise to them, they should, if they consider an application for costs to he valid, ask for a short moment to take instruction. The Court will be loath to entertain applications made subsequent to the determination of an appeal.

6. That passage was inserted in that judgment for practical reasons first that when an application is made to the sitting Court that Court has the matter live before it; second counsel involved in the anneal are also before the Court and are aware of the background and the circumstances of the offence and the offender. If applications are made subsequent then the matter tends to become more abstract and stale: and this is, it is worth repeating, an exercise of an unfettered discretion by this Court. Further the necessity to convene a Court of the same composition can well cause difficulties.

7. Mr. Bailey has taken the point that first of all in Luk Hoi Ka and another v. The Queen [1967] HKLR 163, which was concerned with the late application for order of restitution of the proceeds of a robbery, Huggins, J. (as he then was), delivering the judgment of the Full Court, made reference to the then section 83(5) of the Criminal Procedure Ordinance and went on, at page 167, to construe the wording of that section which contained the words in every appeal". He said that the ordinary connotation of those word's is "during the period from the filing of the appeal until final disposal of the appeal". The judgment continued:

"We should depart from that ordinary connotation only if it be clear that the legislature intended to use the words in a different sense. Incidental matters such as costs may be dealt with after the substantive question has been disposed of but we are satisfied that if costs were not asked for before the Court rose counsel could not successfully come back to ask for costs on a subsequent day".

8. Mr. Bailey has also referred us to R. v. Agritraders [1983] 1 All ER 1006, also reported in [1983] 1 QB 464. In the All England Report at page 1011, Watkins, L.J., in delivering the judgment of the Court, concluded his judgment with these words:

"Finally we think it right to say that regardless of whether we have the jurisdiction, which we are inclined to doubt, to entertain a fresh application for costs, which has arisen as a result of an afterthought, we should, in the circumstances of the present case, refuse it out of hand."

9. With respect to Mr. Bailey, Watkins, L.J. was there talking of a fresh application subsequent to a successful application for costs the point at issue was that, the original order having been more the civil proceeding order "costs here and below", what that was intended to mean. There was, as Watkins, L.J. described it, "an ingenious application" to remedy a matter which counsel had neglected to mention at the hearing of the original application for costs.

10. We are more concerned with Lok Hoi Kai. But that was in 1967 prior to the English Court of Appeal Acts and prior to the 1973 and 1981 Practice Directions given in England in relation to the award of costs. It is also, of course, long before the enacting of section 83XX, which is the fount of our jurisdiction and which came into existence in 1978.

11. Section 83XX reads in part:

"(2) Where an appeal to which this section applies is allowed, the Court of Appeal may, subject to subsection (3), order the payment out of the public revenue of the costs of the appellant.

12. Mr. Macrae submits, in the light of that subsection, that we have jurisdiction but that the requirement referred to in Kwok Moon Yan, as to making the application at the time the judgment is pronounced, is too restrictive. Counsel may not be aware of the full content of a decision and of its implication at the time that it is given. We accept that this might be so but it would be advisable at the very least to indicate to the Court that an application will be made or, as was stated in Kwok Moon Yan, to ask or short time to take instructions.

13. We conceive us to have jurisdiction to entertain an application made subsequent to the determination of an appeal though as we say the better practice, and the much more preferable, is to make it at the time. If not, unless there be good reason, costs of the late application may not be awarded.

14. As to the merits it is suggested that this Applicant brought suspicion upon himself or misled the police mainly as regards his running away at the time the incident occurred. With respect, that is not a matter which we think comes within that rubric.

15. We are prepared to make orders that there be an award of costs, which will be such sums as are reasonably sufficient to compensate the Appellant for any expenses properly incurred by him in this Appeal; in the application for bail pending appeal; in the trial in the District Court; in the application for bail pending trial; and in the preliminary proceedings in the Magistrates Court. Such costs to be ascertained by the Registrar, who will no doubt, should he have recourse Order 62 of the Rules of the Supreme Court, apply that order within the ambit of subsection (4) of section 83XX: a sum that is reasonably sufficient to compensate the Appellant for any expenses properly incurred. We would add that the costs of the appeal are to include the costs of the argument today. We so order.