HKSAR v. LEE TSANG KWONG

HCCC169 & 232/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS. 169 AND 232 OF 2001

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R U L I N G

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1. On 29 November 2002, I dismissed the 4th accused's application for costs. On 28 February 2003, Mr Ching Y. Wong, SC appeared for the 4th accused to seek leave to appeal to the Court of Appeal against my ruling of 29 November 2002.

2. Mr Wong accepts that there are no provisions in the Costs in Criminal Cases Ordinance, Cap.492 which make provision for an appeal against an order not to award costs to a party. However, he points out that in section 19 of the said Ordinance, there is provision for an appeal from the Court of First Instance to lie to the Court of Appeal where a judge has made an order that costs be awarded to any of the parties to the proceedings. Therefore, if section 19 is applicable, Mr Wong relies on rule 4 of the Costs in Criminal Cases Rules to say that Order 59 of the Rules of the High Court should apply to his intended appeal to the Court of Appeal. He therefore seeks leave from me to appeal to the Court of Appeal.

3. Mr Lee, appearing for the respondent, argues that Order 59 does not grant jurisdiction and it only governs practice and procedure. He submits that section 19 of Cap.492 does not apply to the present situation, therefore Order 59 is irrelevant. He points out that there is no other provision which allows the applicant to appeal to the Court of Appeal and he submits that the proceedings seeking such leave are misconceived.

4. In my judgment, section 19 of Cap.492 has no application to the present situation. In R. v. Wong Hing Yuk [1989] 1 HKLR 251, the Court of Appeal held that it had no jurisdiction to hear and determine an appeal from the order of a High Court judge refusing the applicant costs upon her acquittal of the charge. The court found that it had no inherent jurisdiction to hear and determine the appeal and that any right of appeal had to be founded on statute. In HKSAR v. Tong Cun Lin [1999] 2 HKCFAR 531, the Court of Final Appeal said, per Litton PJ, at p.119 :

"It is common ground that no appeal lies to the Court of Appeal from a judge's refusal of costs in a criminal case. The question then arises as to whether this Court has the jurisdiction to entertain such an appeal."

The court then considered section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap.484 and found that the Court of Final Appeal did have jurisdiction to hear that appeal which was also against an order by a High Court judge refusing the applicant his costs of the trial.

5. My ruling is therefore that an appeal against my decision does not lie to the Court of Appeal and therefore I dismiss the application for leave to appeal to the Court of Appeal.