HKSAR v. CHENG CHEE-TOCK, THEODORE

CACC 460/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 460 OF 2012

(ON APPEAL FROM DCCC NO. 476 OF 2011)

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BETWEEN

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Hon Lunn VP (giving the decision of the court on costs):

1.  On 14 March 2014, we handed down a judgment dismissing an application by the applicant for leave to appeal against his conviction after trial on 4 October 2012 by District Court Judge Stanley Chan of a charge of conspiracy to defraud.

2.  By a notice of motion filed on 10 April 2014, the applicant sought leave to make an application out of time for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that a point of law of great and general importance is involved in our decision.

3.  At the suggestion of Court, and with the consent of the parties, we dealt with the applications on the papers without an oral hearing.

4.  We were satisfied that there was no merit in the application and that the question posed on behalf of the applicant was not a point of law of great general importance involved in our decision.  Accordingly, on 12 June 2014, albeit that we granted the application for an extension of time in which to make the application, we refused the application for a certificate.

5.  We made an order nisi that the respondent was entitled to an order for costs of the application for two counsel, to be taxed if not agreed.

6.  By a letter dated 24 June 2014, the solicitors for the applicant applied to vary the order nisi, inviting the court to order that the respondent was entitled to a certificate for one counsel only.  It was contended that in the application the respondent was represented by one counsel only, namely Mr Cooney SC.

7.  By a letter dated 30 June 2014, Mr Cooney resisted that application for variation.  He asserted that Ms Jessie Sham SGC(Ag.) had assisted him in the preparation of the respondent’s submissions in attending a conference with leading counsel at which the applicant’s submissions were considered and in drafting the first draft of the respondent’s submissions.

8.  By a letter dated 3 July 2014, solicitors acting for the applicant invited the court to note that Ms Sham’s name was not appended to the submissions made by the respondent to resist the application for a certificate, whereas it was so appended in the respondent’s submissions submitted in the appeal itself.

9.  In all the circumstances, we are satisfied that it is appropriate to grant the respondent a certificate for two counsel and we make the order nisi absolute.