JUDGE'S RESERVATION (NO. 1) OF 1994 and ATTORNEY GENERAL'S REFERENCE (NO. 1) OF 1994

IN THE COURT OF APPEAL

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. This matter came before the court initially as a reservation by Stuart- Moore J of a question of law for the court's consideration pursuant to the provisions of section 81(1) of the Criminal Procedure Ordinance, Cap. 221:

2. The question posed was this:

"Can the Court make an order under section 73A of the Criminal Procedure Ordinance, Cap. 221 for the payment out of public revenue of the costs of the Defence, where these costs have been borne by Legal Aid?"

3. The circumstances under which the reference arose were that three accused who stood trial before Stuart-Moore J and a jury on an indictment charging them with murder were formally found not guilty by the jury on a direction by the judge after he had found that they had no case to answer.

4. On instructions from the Director of Legal Aid, Counsel for the acquitted accused then applied to the judge for an order that the costs of the defence of each of those accused be met from public revenue under section 73A of the Ordinance.

5. Having heard in the course of argument from experienced counsel that applications made on behalf of the Director of Legal Aid for costs where a legally aided accused has been acquitted are frequently made and that no clear practice had been adopted by the courts as to whether or not an order granting costs to the Director could properly be made, the judge concluded that the time had come for an authoritative rather than merely persuasive decision on the issue. No doubt encouraged, and understandably so in our opinion, by obiter dicta in R. v. Sin Yau-ming [1992]1 HKCLR 127, the judge reserved the matter as a question of law to this court in the terms already stated.

6. Mr McCoy, who appeared on behalf of the Crown in this court, submitted that the Court of Appeal had no jurisdiction to hear the reference. He conceded, as indeed he must, that this court is bound by the relevant ratio decidendi in Sin Yau-ming that a trial judge may reserve a question of law for the consideration of the Court of Appeal either before or after conviction. However, he contended that dicta in that case to the effect that a reference may be made after an acquittal are not binding on this court and should not be followed. Section 81 reads as follows:

(1) The judge of the court of trial may reserve for the consideration of the Court of Appeal any question of law which may arise on the trial of any indictment.

(2) In exercising his power under subsection (1), the judge may act either of his own motion or on the application of the Attorney General or the defence.

(3) A judge may, if he reserves a question of law under subsection

(1) and the accused person has been convicted -

(a) postpone judgment until the question has been considered and decided; and

(b) commit the person convicted to prison or admit him to bail, with or without one or more sufficient sureties, and in such sum as he may think fit, conditioned to appear at such time or times as the judge may direct and receive judgment.

(4) Upon consideration of a question reserved under subsection (1), the Court of Appeal may -

(a) affirm or quash the conviction or order a new trial; and

(b) make such other orders as may be necessary to give effect to its decision:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the question so reserved might be decided in favour of the convicted person, affirm the conviction if it considers that no miscarriage of justice has actually occurred.

7. We think that Mr McCoy is correct. The word "and" following the words "or order a new trial;" in subsection 4(a) is conjunctive, not disjunctive. The word "and" must be construed conjunctively unless the context clearly demands that it be otherwise construed. We are unable to find any justification for construing it disjunctively in the context in which it appears in subsection (4).

8. While we accept, as did Mr McCoy, that an order as to costs is, as Mortimer J (as he then was) said in R. v. Wong Hing-yuk [1989] HKLR 251 at 253, "so inextricably connected with the trial that it is plainly part of the criminal proceedings" and may form the subject of a question of law, it is our opinion that section 81 limits the power to reserve for the consideration of the Court of Appeal to those questions of law that arise before or after conviction. By necessity, any such reservation must be made before the trial concludes.

9. It follows that the question of law in the instant case, arising as it did after acquittal, did not qualify for reservation to this court. The reservation is therefore incompetent and this court has no jurisdiction under the section to consider the point of law sought to be resolved.

10. On a more general note we feel bound to state for the guidance of judges that in our view resort should only be made to section 81 in the most exceptional cases. It is the duty of a judge to ensure that the trial over which he presides proceeds to conclusion with a minimum of disruption. To that end it is his duty to resolve issues of law, be they simple or difficult, as they arise in the course of a trial. It hardly needs stating that reference of any but the most exceptional points of law to the Court of Appeal would inevitably seriously disrupt the orderly disposal of other appeals that have already been listed for hearing and, where the trial is before a jury, result in inconvenience to jurors. We do not think that it was the intention of the legislature that other than in wholly exceptional cases the continuity of trials should be interrupted by references under section 81.

11. Where after reservation to it by a judge of a point of law this court concludes, on an examination of the papers and without hearing counsel, that the point of law is not one which it ought to consider at that stage, it will decline to consider it and direct the judge to continue with the trial. If a conviction then follows the point of law should be determined at the hearing of an appeal that takes its place in the list of those already awaiting hearing.

12. Having given our decision that we had no jurisdiction to entertain the reference, both Mr McCoy and Mr Mullick, who appeared for the Director of Legal Aid, requested us, if we considered it to be within our power to do so, to resolve the point of law by way of a reference under section 81B of the Criminal Procedure Ordinance by the Attorney General following acquittal. Being satisfied that we were empowered to do so, we agreed to hear the reference immediately after Stuart-Moore J had heard counsel on the issue and had resolved it.

13. Great credit is due to both counsel and to Stuart-Moore J for the speed and efficiency with which the matter was brought before and resolved by Stuart-Moore J with the barest of notice having been given for the hearing, and the necessary papers then filed for the hearing before this court - all of this being carried out over the luncheon adjournment.

14. On the basis that the acquitted accused person with whom the present section 81D reference is concerned had been legally aided in his defence and had made no contribution to the costs thereby incurred, Stuart-Moore J refused to make an order that the Crown pay those costs.

15. For the purpose of the section 81D reference the question that had been framed for the reference under section 81 was replaced by the following two questions:

1. In deciding an application for costs under S.73A Criminal Procedure Ordinance is it a relevant consideration for the Court that the acquitted person was legally aided under the Legal Aid in Criminal Cases Rules, Cap. 221?

2. Further, is it a relevant consideration that the acquitted person had made a contribution under Rule 16 Legal Aid in Criminal Cases Rules, Cap. 221.

16. We were informed by counsel that whenever an order has been made for payment of costs to the Director of Legal Aid in respect of an acquitted accused person, the costs are neither agreed nor taxed. What happens is that the Director attributes an arbitrary minimum figure to the costs and enters that amount in a record which is kept in the Legal Aid Department. Nothing further is done. There is no movement of funds either physically or notionally, from the public revenue.

17. In our view this is a nonsensical and time wasting exercise. The time of the courts and those responsible for making these entries could and should be put to better use.

18. Section 73A of the Criminal Procedure Ordinance states:

(1) Where after trial in the court a person is acquitted, the court may order the payment out of the public revenue of the costs of the defence, including the costs of any proceedings before a magistrate.
(2) The costs payable to any person under this section shall be such sums as appear to the court reasonably sufficient to compensate that person for any expenses properly incurred by him in or about the defence.
(3) The amount of costs ordered to be paid under this section shall, except where the amount is fixed by the court, be ascertained by the Registrar.
(4) In this section, "court" means the High Court and the District Court.

19. Mr Mullick submitted that the wording of subsection (1) is wide enough to empower a court to make an order for costs in favour of the Director of Legal Aid. He referred us to several English decisions. None of these assists us in answering the questions that have been referred to us.

20. On a proper reading of the section we readily accept that, where an acquitted accused has been privately represented or, if legally aided, has made a contribution towards his legal aid, the costs so incurred are recoverable in the exercise by the court of its discretion under the section. Where, however, an acquitted accused was not liable to pay the costs incurred in or about his defence no order for costs may be made.

21. We therefore answer both questions in the affirmative.