THE QUEEN v. LAU LOI HING

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HEADNOTE

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Magistrate has jurisdiction to award costs to successful defendant represented under duty lawyer scheme.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 454 OF 1986

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BETWEEN

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JUDGMENT

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1. The appellant was acquitted on a charge of possession of dangerous drugs. He was represented by a solicitor under the law Society Legal Advice and Duty lawyer Scheme (''the scheme"). The solicitor applied for costs against the Crown, but the magistrate ruled that he had no jurisdiction to award costs to a defendant so represented. It is against this determination that the appellant now appeals.

2. The power to award costs in the Magistrate's Court is given by section 69(1) of the Magistrates Ordinance, Cap. 227, which provides:

"In every case of summary conviction or of an order made by a magistrate, except as provided in section 71, it shall be lawful for the magistrate making the same to award and order in and by the conviction or order that the defendant shall pay to the complainant or informant respectively such costs, not exceeding $5,000, as he may think fit; and where a magistrate dismisses the complaint or information he may, if he is satisfied that the proceedings ought not to have been instituted or pursued against the defendant, order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as he may think fit."

3. The magistrate held that 'defendant' means the defendant personally. He stated, in his Reasons for Decision, that any other interpretation would mean that the scheme was liable to pay, on behalf of the defendant, any costs awarded against him. He concluded that, in the absence of any provision in section 69 requiring the defendant to pay over to the schemeany costs awarded, he lacked jurisdiction to make the order sought.

4. Mr. Chain, for the appellant, says that, in practice, every defendant so represented signs an undertaking to pay over to the scheme any costs paid to him by the Crown, in order that he be not unjustly enriched in circumstances where he has incurred no expense.

5. Mr. Chain submits that an analogy with legal aid should be drawn, since both schemes are funded by Government. In support he cites R. v. Lai Shun-tak⁽¹⁾, Chan Sau-kut v. Gray and Iron Construction and Engineering Company⁽²⁾ and R. v. Arron⁽³⁾, in all of which costs were awarded to legally aided persons. The fact that the appellant incurred no expense is, he submits, irrelevant.

6. Mr. Smith, for the Crown, relies on the lack of legislation ensuring that costs awarded to a client of the scheme are channelled back to the central fund. He draws the court's attention to section 19 of the Legal Aid Ordinance, which provides:

7. Mr. Chain replies that this is irrelevant, since the power to award costs in civil cases comes from the Supreme Court Ordinance, not the Legal Aid Ordinance.. This is clearly right. In England, likewise, it comes from the Judicature Act, 1925, section 50(l) (now Supreme Court Act, 1981, section 51).

8. In England there is no provision in the Legal Aid Act, 1974, equivalent to section 19(1) of the Legal Aid Ordinance, though both section 2(5) and section 7(6) state:

"Except as expressly provided by this Part of this Act or by regulations made under it -

 

9. This, no doubt, is why Scarman L. J. in Arron stated the matter thus: "The only complication in the matter is that the appellant is legally aided. In the view of this court it is quite immaterial whether a successful appellant be legally aided or not. If in the relevant litigation the appellant is entitled to his costs, then an order will be made in the discretion of the court and following the practice direction, irrespective of the financing of his appeal whether it be private or public."

10. It would appear, therefore, with respect to counsel for the Crown, that reference to section 19(1) of the Legal Aid Ordinance is misleading. It is merely declaratory of the existing right to award costs and the real purpose of the section is to provide for enforcement of the order in the case of legally aided persons.

11. If this is right, the absence of a similar provision in section 69 of the Magistrates Ordinance does not prevent the award of costs to a defendant who is represented under the scheme. There is a lacuna, but it is not fatal so far as this appeal is concerned.

12. I can see no reason why an undertaking entered into by a defendant, in consideration of being represented under the scheme, should not be enforceable. If, for any reason, it is not, the Law Society will doubtless press for the appropriate legislation.

13. This, however, does not affect the right of a successful defendant to receive costs, provided the conditions in section 69 are fulfilled.

14. For these reasons I allow the appeal. I am satisfied that the magistrate had jurisdiction to make the order sought. The appellant does not ask that the matter be remitted to the magistrate and no order from this court is therefore necessary.

(1) C. A. No. 607/85

(2) H. C. A. No. 6006/82

(3) 1973 1 W. L. R. 1238