THE QUEEN v. WONG HING YUK

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J U D G M E N T

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Mortimer, J.:-

1. The Applicant was indicted on a joint offence with her husband of possession of dangerous drugs for the purpose of trafficking. Her husband absconded. She stood trial on the 19th of May of this year before Garcia J. and a jury. The Crown called its witnesses and closed its case. The Judge upheld the submission of no case and she was acquitted. The Judge refused her application for costs. She now seeks leave to appeal against that refusal.

2. The first and in the result the only matter we must decide is whether this Court has jurisdiction to hear such an appeal.

3. Mr. McCoy for the Appellant submits primarily that the Judge's order was made in criminal proceedings and that this is a criminal appeal which the Court has jurisdiction to entertain.

4. If he is wrong, he submits secondly that the criminal proceedings terminated on the acquittal and questions relating to costs are properly regarded as civil proceedings about which this Court has jurisdiction to entertain an appeal under Section 14 of the Supreme Court Ordinance Cap. 4.

5. Subject to irrelevant-exceptions and the question of leave to appeal an order for costs (See Section 14(2)(3)) there is no doubt that Section .14 empowers the Court of Appeal to entertain an appeal from "every judgment or order of the High Court in any civil cause or matter."

6. At the outset it is convenient to consider whether the Judge's order was made in a civil or criminal cause or matter.

7. The relevant power to award costs is contained in Section 73A of the Criminal Procedure Ordinance Cap. 221 which provides:

"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..."

8. In Subsection 4 "the Court" is defined as the High Court and the District Court.

9. In support of his submission that an order; under this Section is one in a civil cause or matter, Mr. McCoy argues that the criminal proceedings come to an end on acquittal and that the nature of the application for costs and any order thereon which may follow is civil, not criminal. By analogy, he relies upon the decision of this Court in R v Eng Buoy Cr App. 438/86 in which this Court decided, following R v Southampton Justices Ex-parte Green 1976 Q.B. 11, that an estreatment or forfeiture of bail under Section 13AA of the Criminal Procedure Ordinance is a civil proceeding.

10. In our judgment, Eng Buoy's case is distinguishable on the facts and should not be regarded as authority covering the instant case. We note the doubts expressed about Green's case on the grounds that a misinterpretation of Amand v the Home Secretary [1943] AC 147 was involved. See in this connection R v Lambeth Metropolitan Stipendiary Magistrate ex-parte McCombe [1983] Q.B. 551; In Re Smalley [1985] 1 A.C. 622 at 634A-F; Day v Grant [1987] Q.B. 972n; and Carr v Atkins [1987] Q.B. 963.

11. Whatever the position in relation to other orders made by the High Court relating to criminal prosecutions, the discretion exercised by the Judge when considering orders for costs under Section 73A is go intimately connected with the facts of the case and the conduct of the trial that a decision that it is not a discretion exercised in the course of criminal proceedings and not discretion in a criminal cause or matter would border on the perverse.

12. In Re Smalley [1985] 1. A.C. 622 at 644d Lord Bridge said:

"This is quite a different criterion from such as would govern the discretion whether or not to make any of the orders for costs which may be made under Section 3(1)(a) or Section 4(1) of the Costs in Criminal Cases Act 1973. The exercise of that discretion is intimately related to the conduct of the trial. Indeed it may be said te a intergral part of the trial process. A legal aid contribution order, on the other hand, seems to be unaffected by any consideration arising from the conduct of the trial and is certainly no part of the trial process."

13. Also on the very point, in R v Geiringer [1977] 1 NZLR 7 at p.9, the President cites a passage from Ex parte Woodhall (1888) 20 QBD 832 at p.836 where Lord Eshet M.R., expressed the opinion that the words 'in any criminal cause or matter'

"applied to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises."

The President added:

"This passage in. Lord Esher's judgment was approved in Provincial Cinematograph Theatres Ltd v Newcastle-upon-Tyne Profiteering Commitee 1921 37 TLR 799 (HL). For ourselves we have no doubt that the appellant's application for costs should be classified as a criminal rather than as a civil proceeding."

14. In respect of certain orders made by the English Criminal Courts the state of the authorities on this point is in some doubt. See the decision of Carr v Atkins to which we have already referred. At 970H the Master of the Rolls opines, having considered the state of English authority and the doctrine of stare decisis,

"I think that the time has come when we should look at this afresh."

15. Whether or not this is the preferable approach, in our judgment, the Judge's order refusing the applicant's costs was so inextricably connected with the trial that it is plainly an intergral part of 'the criminal proceedings. It was an order in a criminal cause or matter, and this is amply supported by the authorities to which we have adverted.

16. We turn to consider whether this Court has jurisdiction to hear and determine this appeal on the basis that the Judge's order was made in a criminal cause or matter.

17. It is accepted by Mr. McCoy rightly that the Court of Appeal has no inherent jurisdiction Any right of appeal must be founded upon statute. In this case, it must be founded upon the Supreme Court Ordinance and/or the Criminal Procedure Ordinance. If not, there is no appeal.

18. The relevant jurisdiction in a criminal cause or matter is defined by Section 13(3) of the Supreme Court Act and Part IV of the Criminal Procedure Ordinance. Section 13(3) reads:

"The criminal jurisdiction of the Court of Appeal shall consist of

(a) appeals from the High Court of District Court under Part IV of the Criminal Procedure Ordinance and

(e) any other jurisdiction conferred upon it by any law."

19. Part IV of the Criminal Procedure Ordinance contains many provisions setting out the detail of this Court's powers and procedure in criminal matters.

20. We were invited to consider the definition of "sentence" in Section 80 (I) which reads:

"Sentence in relation to an offence includes any order made by a Court in dealing with an" offender, including a hospital order."

21. This plainly excludes the Judge's order in the instant case. It was not an order dealing with an offender.

22. A number of other provisions were brought to our notice, but search as we may with Mr. McCoy's energetic assistance, we are unable to find any provision which gives this Court jurisdiction to hear an appeal against an order such as was made in this case. There is none.

23. Additionally Mr. McCoy asked us to consider whether the necessary power was given by Section 13(4) or Section 15 of the Supreme Court Ordinance. These were ingenious arguments born of desperation.

24. Section 13(4) reads:

"For the purposes of and incidental to (a) the hearing and determination of any appeal to the Court of Appeal and (b) the amendment, execution and the enforcement of any judgment or order made on such an appeal, the Court of Appeal shall have all the authority and jurisdiction of the Court or Tribunal from which the appeal was brought.

This section simply gives this Court the powers of the lower tribunal so that it can hold effective hearings and make effective orders. To hold that this gives power to hear an appeal in this case involves unacceptable straining of plain language.

25. Section 15 deals with applications for a new trial or to set aside a decision and provides that these will be heard by this Court This gives no additional jurisdiction to the Court. It is historical in nature so as to provide one tribunal to hear all such applications. (See the Supreme Court Practice 1988 paragraph 59/2/1.) No relevant application is made in the present case.

26. Mr. McCoy invited our special consideration to two previous decisions of this Court upon which he strongly relies; R v LEE Chiu-chu (1986) HKLR 381 and a unreported decision MAK Yuet-hang No. 399/87. In both these cases this Court accepted jurisdiction in matters precisely similar to the instant case. In the latter case, heard as recently as the 16th June 1988, the Crown did not oppose the appeal. In neither of the two cases was any question of jurisdiction raised, argued or decided. The attention of the Court was not drawn to either the statutory provisions or to the relevant authorities These decisions are clearly 'per incuriam' on jurisdiction and on this point are not binding upon us.

27. Although we have no doubt that Crown Counsel would have taken the point before us we have Mr. McCoy to thank for raising and arguing it so frankly. He acted in the highest traditions of the Bar.

28. It follows that in spite of his attractive argument, in our judgment, this Court has no jurisdiction to hear and determine any appeal from the order made by Garcia J. refusing this acquitted person her costs and her application for leave is dismissed.