HKSAR v. CHAN SHUI LUN (陳瑞麟)

Press Summary (English)

Press Summary (Chinese)

FACC No. 23 of 2018

[2019] HKCFA 8

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 23 OF 2018 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 76 OF 2017)

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JUDGMENT

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Mr Justice Fok PJ:

1.  This uncontested appeal concerns an order for costs made by a judge against an unsuccessful defendant in a magistracy appeal.  It reinforces the need for courts to have regard to the principles and practice laid down in HKSAR v  Chui Shu Shing (2017) 20 HKCFAR 333 before exercising powers to order costs against parties in criminal appeals under the Costs in Criminal Cases Ordinance.[1]

2.  On 30 December 2016, the appellant was tried before a magistrate[2] for the offence of careless driving,[3] arising out of a collision between his car and a taxi on Lantau Island.  On 17 January 2017, the magistrate convicted the appellant of the offence and, on 2 February 2017, imposed a fine of HK$3,000 by way of sentence.

3.  The appellant’s appeal against conviction to the Court of First Instance[4] was heard before Deputy High Court Judge Stanley Chan on 16 June 2017.  By his judgment dated 11 October 2017, the Judge dismissed the appeal and upheld the conviction and, notwithstanding the absence of any application for costs by the prosecution (respondent in this appeal), ordered the appellant to pay costs in the sum of HK$2,000 to the respondent.  The Judge did so without first affording the appellant an opportunity to be heard as to whether a costs order should be made.

4.  In the concluding paragraph ([12]) of his judgment, the Judge said:

“I find that the appellant does not have a good chance of success in this appeal hearing. I have considered the general principles set out in section 15 of the Costs in Criminal Cases Ordinance and I firmly believe that the court has to take a clear stance regarding the spirit and intent of section 13B in order to avoid abuse. The appellant is represented by a [sic] counsel, and naturally (he) is aware of all the advice regarding the liabilities involved in the present appeal, which naturally includes the costs. However, having considered the facts of the present case, I assess the costs summarily and decide to order that the appellant is to pay the respondent the costs of $2,000. I find that this is merely a very small percentage of the costs incurred, but it has its substantive significance.”[5]

5.  The reference to section 13B of the Costs in Criminal Cases Ordinance[6] may be a typographical error since that section deals with the prosecution’s costs on an unsuccessful application by a defendant for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance,[7] which was not the situation before the Judge since the appellant had not applied for such a certificate from him.  The correct provision dealing with prosecution costs on an unmeritorious magistracy appeal by a defendant is instead section 13 of the Costs in Criminal Cases Ordinance.  However, for the purposes of this appeal, nothing turns on this error, whether typographical or otherwise.

6.  On 5 December 2017, pursuant to the costs order, the appellant paid the sum of HK$2,000 to the respondent.

7.  On 10 April 2018, the appellant applied for leave to appeal to the Court of Final Appeal against the Judge’s judgment dismissing his appeal and upholding his conviction and also against the costs order.  The respondent indicated to the Appeal Committee that it was prepared to concede to an order granting leave to appeal on the basis that the costs order was wrongly made and that the proposed appeal against that order should be allowed.

8.  On 6 November 2018, the Appeal Committee dismissed the application for leave to appeal against conviction but granted the appellant leave to appeal against the costs order on the ground that it was reasonably arguable that substantial and grave injustice had been done on the basis that the costs order was made contrary to the principles laid down in HKSAR v Chui Shu Shing (2017) 20 HKCFAR 333.[8] At the same time, the Appeal Committee directed the parties to file a joint case in respect of the appeal in order for the Court to determine, in accordance with the procedure laid down in HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303, whether it would dispose of the appeal on the papers and without an oral hearing.

9.  The parties duly filed a Joint Case dated 11 December 2018 on the question of the costs order. In it, both parties submit that, in making the costs order against the appellant when he handed down judgment without giving the appellant any prior notice or warning and without giving him an opportunity to be heard on the question of costs, the Judge departed from accepted norms and substantial and grave injustice was done to the appellant.

10.  The relevant principles governing the making of a costs order in magistracy appeals are those set out in the judgment of Ribeiro PJ in HKSAR v Chui Shu Shing at paragraphs [9] to [11]:

“9. In order that the right of appeal granted by s.113 be given full effect, the s.13 requirement that the appeal was ‘without merit’ must be understood to mean that the appeal was not reasonably arguable. It must also be noted that such a finding, though necessary, is not sufficient. The judge must go on to apply the principles laid down by s.15. This obliges the court to ensure that any sum awarded is not punitive but only compensatory of properly incurred expenses. It must also ensure that a contemplated award would be ‘just and reasonable’.

10. For the court to address these issues, it is obviously necessary for it to have some idea of the magnitude of costs incurred by the prosecutor and in practice, these issues are likely to arise only where the prosecution applies for costs. It would then be necessary for the appellant to be afforded a proper opportunity to be heard as to whether the order should be made.

11. As the Court of Appeal recognized in HKSAR v Kissel (No 2), the Court must have regard to the financial means of the defendant and satisfy itself that any costs order is one that the defendant is able to pay.  It would not be just and reasonable to order the appellant to pay costs beyond his or her means.  And such an award might well operate punitively.”

(Footnotes omitted)

11.  Here, it is unquestionably the case that the Judge did not adhere to those principles. This is somewhat surprising since the judgment in HKSAR v Chui Shu Shing was handed down three months before the Judge’s judgment in the present case and HKSAR v Chui Shu Shing was an appeal to this Court from the same Judge.

12.  We are therefore satisfied that the appeal should be allowed and the costs order in question quashed.

13.  The parties are agreed that the HK$2,000 paid by the appellant to the respondent on 5 December 2017 pursuant to the costs order should be refunded to him and we so order.

14.  Finally, the parties being in agreement as to the costs of this appeal, we make an order that:

(1) The costs of this appeal and the application for leave to appeal on the issue of the costs order be awarded to the appellant, such costs not to exceed the contribution payable by the appellant to the Director of Legal Aid; and

(2) The appellant’s own costs be taxed in accordance with the Legal Aid Regulations.[9]