HKSAR v. TOWER MARK LTD.

HCMA1119/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1119 OF 2001

(ON APPEAL FROM FLS 3461 OF 2001)

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J U D G M E N T

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1. This is an appeal against a magistrates refusal to award costs to the appellant upon its acquittal by her of an alleged offence under the Factories and Industrial Undertakings Ordinance Cap. 59.

2. It is common ground before me that the appellant's acquittal of that offence was on the merits of the case and that it had done nothing to bring unwarranted suspicion upon itself for the purposes of that prosecution.

3. Instead the magistrate's refusal to make an order for costs in favour of the appellant following its acquittal was based on the behaviour of the appellant's counsel during the course of the trial. The learned magistrate in her Statement of Findings said this:

"In the course of trial, the defence counsel Mr Chow made numerous applications or objections, many of which were groundless. For example, when Mr Lee Heung Wah gave evidence, Mr Chow objected to this witness giving evidence on matters which were not mentioned in his witness statement, and he also asked for an adjournment to take instructions on these points from the appellant and the appellant's expert. He further objected to Mr Lee raising a "new matter", i.e. the use of a vibrating machine, even though Mr Chow himself had mentioned this machine even before this witness was called. At the end of the evidence-in-chief, Mr. Chow asked that cross-examination be adjourned until after all the other prosecution witnesses have given evidence. Even though his ground for this application was weak, I granted this as a convenience to him and as it would not have caused prejudice to either party."

4. The magistrate gave another incident of time wasting in her Statement of Findings:-

In respect of another witness, he said that at 30 meters, the casing could not be safely extracted without the use of a vibrator, and that it was safer to use a vibrator than without. However, Mr Chow kept pressing him at which depth could the casing be extracted safely without a vibrator, until it was clear that he wanted to keep asking until the witness said that it was safe to extract without a vibrator at all."

5. The learned magistrate then exercised her discretion to decline to award costs pursuant to s. 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap 492.

6. That section says:-

"where.......

(c) A magistrate dealing with a summary offence ...... dismisses the information or complaint or acquits the defendant........... the magistrate may order that costs be awarded to the defendant."

7. There is no doubt that a refusal to award costs to an acquitted defendant is within a magistrate's discretion. But that discretion must be exercised judicially: R v. Kwok Moon Yau & Anor 1989 & HKLR 396; HKSAR v. Dove & Anor 1998 1 HKLRD 179.

8. In the words of Litton PJ in Tong Cun Lin v. HKSAR (2000) 1 HKLRD 113:

"..... orders for costs in favour of acquitted defendants should normally be made unless there were positive reasons for not doing so. Examples of such reasons (are): (a) the defendant's own conduct had brought suspicion on himself; and (b) the defendant had misled the prosecution into thinking that the case against him was stronger than it was."

9. But in the present case the learned magistrate refused the appellant its costs on the particular basis of the conduct of defence counsel at trial. In other words she took into account the costs wasted by counsel's conduct. Without specifying the particular provision, she was effectively basing her order on the power to do so provided to her by section 17 of the Costs in Criminal Cases Ordinance. That section governs an award of wasted costs. That section says:-

"Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings"

10. There can be no doubt that the learned magistrate was entitled to award costs to the prosecution as the result of the conduct of defence counsel pursuant to s.17.

11. In the present case the learned magistrate made no order as to costs.

12. From that it appears she set off the wastage apparently occasioned by the defence counsel's conduct against the costs which would normally have gone to the appellant upon its acquittal.

13. As she says in her Statement of Findings:-

"At the end of the case, I felt that the prosecution could have safely called four prosecution witnesses, and that the two days set down for trial would have been ample. However, due to the handling of the case by both the prosecution and the defence counsel, and even after much encouragement from me not to go over ground that has already been agreed, covered, or not relevant, the case went on for four days, which is much longer than it should have."

14. Her reasoning appears to have been that costs of the two days the trial should have taken in the absence of the defence counsel's time wasting and which should have gone to the appellant, were extinguished by the extra two days taken at trial because of the wastage of time occasioned by the defence counsel, costs of which, pursuant to s.17, should have gone to the prosecution.

15. There is nothing objectionable about this reasoning and this court would be loathe to interfere with an order, or no order, as to costs made on that reasoned basis.

16. But s. 17 requires expressly that counsel be heard before any wasted costs are taken into account.

17. In my judgment that express provision in s.17 merely reflects the common law principle that parties are entitled to be heard on any matter upon which it is contemplated an order, such as costs, may be made against them.

18. For the purpose of these proceedings, it is common ground counsel, and particularly defence counsel, were never alerted to the fact that the learned magistrate was considering taking into account costs wasted in the trial.

19. At the very least defence counsel should have been heard, or given an opportunity to be heard, on the matter of wasted costs.

20. In my judgment in the absence of counsel being heard the magistrates costs order was materially irregular and should be set aside.

21. I do not propose to deal afresh with the question of wasted costs. Nor do I propose to remit it to the learned magistrate for further consideration. That, at this stage would amount to the unnecessary incurring of more costs.

22. The original costs order having been set aside, what remains, in my judgment, the acquittal having taken place on the merits and there being no suggestion of the appellant having brought in any way the prosecution upon itself, is the principle that costs follow the event.

23. Accordingly, the appellant is allowed its costs of trial and, having heard counsel before me, the appellant is awarded its costs of this appeal.