HKSAR v. CHAN YAU HEI

FACC No. 3 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2013 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 42 OF 2011)

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JUDGMENT ON COSTS

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Mr Justice Fok PJ (giving the Judgment of the Court) :

1. By its judgment dated 7 March 2014, the Court allowed the appellant’s appeal and quashed the appellant’s conviction for the offence of outraging public decency.  Although the Court found that the message posted by the appellant on the internet discussion forum was capable of outraging public decency, the public element of the offence was not satisfied in this case.

2. The procedural history of the matter is described in Section C of the Court’s judgment.

3. The Court invited written submissions as to costs and the parties have now lodged such submissions.

4. The appellant asks for an order in his favour in respect of the costs in the courts below and in the appeal to this Court.  He was represented at trial by the Duty Lawyer Scheme but there is no indication in the submissions as to whether he was required to make any contribution or handling fee towards his representation.  Before the Judge and in this Court, the appellant was legally aided and was required to make a financial contribution of $1,000 to the Director of Legal Aid in respect of each appeal, therefore a total contribution of $2,000.  The appellant has clarified that he seeks his appeal costs limited to the financial contributions he was required to make to the Director of Legal Aid.

5. For its part, the respondent does not object to an award of costs of the appeal to the Court of First Instance and to this Court but opposes the application in respect of the costs in the Magistracy.  Further, the respondent contends that any award of costs should be limited to the extent of the appellant’s personal liability for such costs, namely the $2,000 contribution he was required to make to the Director of Legal Aid.

6. The Court has an unfettered discretion as regards the award of costs under section 43 of the Hong Kong Court of Final Appeal Ordinance (Cap.484). As a general rule, costs should normally follow the event of an acquittal unless there is a reason for departing from that rule, for example where the accused has by his conduct brought suspicion on himself.  This is the basis on which the respondent contends the appellant should not have an order of costs in his favour in respect of the prosecution in the Magistracy.

7. We are satisfied that it is a proper exercise of discretion to deprive the appellant of the costs of the trial before the Magistrate in view of his conduct.  The appellant’s message was inflammatory, with a number of aggravating features, and this Court has ruled that it is deserving of condemnation. The conduct in posting the inflammatory message is relevant to the discretion whether to deprive him of the costs of the trial and he can properly be regarded as having brought the prosecution upon himself.

8. So far as the two appeals are concerned, the appropriate order is that the respondent should pay the appellant the costs of the appeals to the Judge (in HCMA 42/2011) and to this Court (in FACC 3/2013) but limited to his two contributions to the Director of Legal Aid of $1,000 in respect of each appeal.

9. We therefore order that:

(1) There be no order for costs before the Magistrate;

(2) The appellant be awarded costs of the appeal to the Judge in the sum of $1,000 and costs of the appeal to this Court in the sum of $1,000.