R. v. MA KWOK MING

IN THE COURT OF APPEAL

1994, No. 451
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. Mr Ma Kwok Ming was tried in the District Court on one charge of conspiracy to handle stolen goods. On August 15 last year, he was acquitted. He asked the trial judge, H.H. Judge Whaley, to award him costs. The judge refused to do so. Mr Ma now asks this Court to reverse that refusal.

2. We have no jurisdiction to do so. This Court is a creature of statute. Essentially, its jurisdiction is that conferred by statute. We say "essentially" because every court's jurisdiction includes inherent jurisdiction to protect and further its process.

3. No statute confers upon this Court any jurisdiction to hear an appeal against a refusal to award costs to an acquitted accused. So no such appeal is part of this Court's process.

4. And there is, therefore, no question of any inherent jurisdiction to protect or further any such process. This point has been dealt with before by this Court. In R. v. Wong Hing Yuk [1989]1 HKLR 251 we said on that occasion what we say on this occasion: this Court has no jurisdiction to hear an appeal against a refusal to award costs to an acquitted accused.

5. A new point is taken in that Mr Ma seeks to rely on the equal protection clause contained in article 22 of the Bill of Rights. It is argued on his behalf that if there is no jurisdiction to hear an appeal against a refusal to award costs to acquitted accused persons, then they are not being accorded protection equal to that accorded to the persons dealt with in article 11(5) of the Bill of Rights. Article 11(5) provides that: "where a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that non-disclosure of the unknown fact in time is wholly or partly attributable to him".

6. The argument fails. There is simply no scope for the Bill of Rights to create jurisdiction in the way suggested. Moreover, article 11(5), as one can tell by simply reading it, deals with a rather special situation which bears no comparison with that of an acquitted accused. So the position is not affected by the Bill of Rights.

7. In short, there is simply no jurisdiction to entertain this purported appeal. It must be dismissed as incompetent: not on the merits because the merits are not reached but as incompetent. It is so dismissed.