HKSAR v. LEUNG CHUNG MAN AND ANOTHER

CACC 105/2023, [2025] HKCA 1115

On Appeal From [2023] HKDC 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 105 OF 2023

(ON APPEAL FROM DCCC NO 722 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

1.  On 1 August 2025, the Court allowed the appeals against conviction of both applicants. Subsequently, an application for costs was made on behalf of the 1^st applicant in respect of the full costs of the appeal and this application, and for 50% of the costs of the trial; while an application for costs was made on behalf of the 2^nd applicant for 50% of the costs of the appeal and the full costs of the trial, an application for bail pending appeal before Anthea Pang JA and this application. The 2^nd applicant also seeks a certificate for two counsel.

2.  This matter will be dealt with on the papers, having received full submissions from all parties.

3.  The respondent’s position in respect of the 1^st applicant is that the grant of costs of the trial is opposed on the ground that he brought suspicion upon himself, but it is accepted that he should get the costs of the appeal and of this application. As for the 2^nd applicant, the respondent likewise opposes the grant of any costs in respect of the trial but agrees to an award of 50% of the costs of the appeal and all hearings incidental thereto, including this application, given that the 2^nd applicant’s counsel took “points of law that were without merit in the appeal hearing and in this application”. The respondent also opposes a certificate for two counsel in respect of the appeal.

4.  The principles for an award of costs on a successful appeal are well-established. However, the application of those principles to an individual case will be different and dependent on a myriad of different factors, most typically as to whether the defendant/applicant brought suspicion on himself, and how he conducted the trial and the appeal.

5.  Undoubtedly, the two applicants brought some suspicion upon themselves at trial: the 1^st applicant by virtue of his “admissions”, which were judged to be voluntary at the trial below (which ruling he did not challenge at the appeal), and his shifting responses to his knowledge of Huang’s status and the reasons behind his booking of a room for her on 1 August 2020; the 2^nd applicant by virtue of booking a room for no less than 16 nights in circumstances (unlike the 1^st applicant) when there was no evidence Wang had been registered as a hotel guest previously and when he had given inconsistent answers as to Wang’s purpose in coming to Hong Kong in his evidence and his cautioned statements.

6.  As for the appeal, we have to say, with due respect, that the appeal was allowed on a basis not specifically advocated by either counsel. Indeed, some of what was argued was not accepted by the Court; in particular, much of counsel for the 2^nd applicant’s argument on the law was not endorsed at the appeal. Moreover, as was pointed out in our judgment[1], the Court of Final Appeal authority of Lee To Nei v HKSAR[2], which we found highly relevant and rather decisive on the point of law as to the appropriate Kulemesin alternative in the present case, was not actually referred to us by any counsel.

7.  Despite bringing some suspicion on themselves, but given the view we formed as to the appropriateness of using the charge of Assisting an unauthorized entrant to remain in Hong Kong, contrary to section 37DA(1) of the Immigration Ordinance, Cap 115, in respect of the facts which emerged at trial, we are prepared to grant 50% of the costs of the trial to each applicant. For the reasons we have adverted to, we shall only grant 50% of the costs of the appeal, including the hearings incidental thereto, to each applicant. For the avoidance of doubt, the ‘hearings incidental thereto’ are the present application and the application for bail pending appeal by the 2^nd applicant before Anthea Pang JA. The costs are to be taxed if not agreed.

8.  This is not an appropriate case for the grant of a certificate for two counsel as sought by the 2^nd applicant. Whilst there was much learned argument put forward, we found it was not to the point.