HKSAR v. NWC

CACV 196/2019

[2021] HKCA 1820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 196 OF 2019

(ON APPEAL FROM HCMA NO 336 OF 2017)

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JUDGMENT

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Hon Chu JA (giving the judgment of the Court):

A. Introduction

1.  This is an appeal against the decision of Lisa Wong J (“the Judge”) given on 9 April 2019 dismissing the appellant’s appeal against the taxation of her costs by Master Kot pursuant to a costs order made in a magistracy appeal.     

2.  The Judge dismissed the appeal as being incompetent for want of jurisdiction.  The primary issue in this appeal is whether the Court of First Instance has jurisdiction to hear an appeal from taxation of costs in criminal proceedings.

B.   The facts

3.  The appellant was the defendant in a magistracy case (FLCC 286/2017).  She pleaded not guilty and was acquitted after trial.  Her application for costs was refused by the trial magistrate.   

4.  On 18 April 2018, Deputy High Court Judge Anthony Kwok allowed her appeal against the magistrate’s refusal of costs (HCMA 336/2017), and awarded her the costs of the trial and the appeal, to be taxed if not agreed (“the Costs Order”)[2].

5.  On 16 July 2018, the appellant filed a bill of costs in HCMA 336/2017 claiming an amount of HK$184,575.50.  On 2 August 2018, the respondent filed a list of objections.

6.  The taxation call-over hearing came before Master Chow on 21 August 2018.  Directions were made pursuant to Practice Direction 14.3, when, as observed by the Judge,[3] the applicable Practice Direction is Practice Direction 14.4 on Taxation of Costs in Criminal Cases[4].

7.  On 12 September 2018, the appellant wrote to Master Chow requesting a summary assessment of her costs.  On 26 September 2018, the Master refused the request pointing out that there is no basis for summary assessment of costs in light of the Costs Order.

8.  On 8 October 2018, the appellant issued a notice of appeal under Order 58 of the Rules of the High Court (“RHC”), Cap. 4A to appeal Master Chow’s refusal of summary assessment of her costs to a judge in the Court of First Instance.  At the hearing of the appeal on 6 November 2018 before Wilson Chan J, a consent order was made, under which the appeal was dismissed with no order as to costs, and the directions made by Master Chow were set aside with new directions on the taxation hearing being provided for.

9.  The taxation hearing took place on 21 February 2019 before Master Kot and the appellant’s bill of costs was taxed.  Pursuant to rule 7(4) of the Costs in Criminal Cases Rules, Cap. 492A (“CCCR”)[5], a “notice to the party commencing the proceedings for taxation” (“rule 7(4) notice”) dated 6 March 2019 was issued by Master Kot informing the parties that the costs allowed and payable to the appellant were HK$127,030. 

10.  This was followed by a letter from the High Court Registry dated 14 March 2019 enclosing, for the parties’ checking, a revised table of calculation that gave an itemised breakdown of the items and the amount allowed.  Under the revised table of calculation, the amount of profit costs allowed and the taxing fee were respectively revised upward to HK$137,543.50 and HK$9,384, giving a total amount of HK$146,927.50.  The letter further informed the parties that a revised rule 7(4) notice would be issued if no request for further clarification by the parties was received within the next 14 days.

11.  On 25 March 2019, the respondent informed the High Court Registry that according to its calculation, the amount of profit costs allowed should be HK$137,297.50 and not HK$137,543.50. 

12.  By letter dated 23 April 2019, the parties were informed that upon checking the Court’s record, the calculation and amount set out in the revised table of calculation enclosed with the letter dated 14 March 2019 were correct.  A revised rule 7(4) notice was accordingly issued to the parties, in which the total amount of costs allowed and payable to the appellant was stated to be HK$146,927.50.

13.  Meanwhile, on 25 February 2019, the appellant filed a notice of appeal under Order 58 of the RHC to appeal the taxation by Master Kot on 21 February 2019 to a judge of the Court of First Instance.  The appeal was brought before the issuance of the 6 March 2019 rule 7(4) notice (see [9] above) and the 23 April 2019 revised rule 7(4) notice (see [12] above).

C.   The Judge’s Decision

14.  The appeal came before the Judge on 28 March 2019.  By her decision handed down on 9 April 2019 (“the Decision”)[6], the Judge dismissed the appeal.

15.  The Judge held that a judge of the Court of First Instance has no jurisdiction to entertain an appeal from a decision made by a master of the High Court on taxation of costs in a criminal case.[7]  In coming to this conclusion, the Judge had regard to the relevant statutory provisions in the Costs in Criminal Cases Ordinance, Cap. 492 (“CCCO”) and the CCCR[8] as well as the decisions of Poon J (as the Chief Judge of the High Court then was) in HKSAR v Wong Tsz Yuk [2010] 1 HKC 464 and this Court[9] in Jiang Hai Pu v Department of Justice [2016] 5 HKLRD 197.[10]  Both in Wong Tsz Yuk and Jiang Hai Pu, the Court held that the statutory regime in the CCCO and the CCCR is intended to be a complete and self-contained code regulating the law and practices in relation to costs matters in criminal cases, and neither the CCCO nor the CCCR provides for any further review of taxation or appeal beyond a review by the taxing authority[11]. 

16.  In [21] and [22] of the Decision, the Judge also rejected the appellant’s argument that Wong Tsz Yuk and Jiang Hai Pu are distinguishable:

“21. The appellant seeks to distinguish Wong Tsz Yuk and Jiang Hai Pu on the basis that, in those cases, the appeal against the taxing authority’s decision on taxation was lodged after a review of such decision by the taxing authority. She maintains that a right of appeal to a judge of the CFI exists before review of the taxation by the taxing authority.

22. I am afraid I can see no such distinction. The reason why it was held in Wong Tsz Yuk and Jiang Hai Pu that there could be no review or appeal before a judge of the CFI against a decision on the taxation of criminal costs by the taxing authority is the absence of express provision in the CCCO or the CCCR for such a review or appeal. Following the same reasoning, there is no provision in either the CCCO or the CCCR for a review or appeal before a judge of the CFI against a decision on the taxation of criminal costs before review of such taxation by the taxing authority. In any event, I find the suggestion of a right of appeal to a judge of the CFI before the review, and therefore finalisation, of the taxation by the taxing authority to be defying common sense.”

17.  The Judge further rejected the appellant’s argument that the Court of First Instance has jurisdiction to hear the appeal under Order 58 of the RHC.  The Judge held that Order 58 is not applicable since Order 1 rule 2(3) of the RHC[12] excludes criminal proceedings from the application of the RHC save for a few specified orders which do not include Order 58[13].

18.  The Judge accordingly concluded that the appeal was not competent and dismissed it for want of jurisdiction.[14]

D.   This appeal

19.  On 24 April 2019, the appellant filed a notice of appeal to appeal the Judge’s decision to this Court.  She also sought to appeal directly to this Court what she regarded as refusals by the Registrar of the High Court and Master Kot to respond to her requests for verification of the authority of the taxing authority[15].    

E.  The nature of this appeal

20.  The present appeal is listed as a civil appeal.  In light of some of the points made by the appellant on the Court of Appeal’s jurisdiction in her arguments, we wish to clarify whether the appeal was properly brought under the civil jurisdiction of this Court, notwithstanding that the order sought to be appealed was made in a magistracy appeal, which is a set of criminal proceedings.

21.  The jurisdiction of the Court of Appeal to hear civil and criminal appeals is circumscribed by section 13 of the High Court Ordinance, Cap. 4 (“HCO”).  There is no inherent jurisdiction to hear appeals outside of what is prescribed by statute; nor can the court assume jurisdiction outside the statutory scheme: So Wing Keung v Sing Tao Ltd [2005] 2 HKLRD 11 at [31(1)] and [31(2)].

22.  It is clear that the criminal jurisdiction of this Court is not engaged because the present appeal does not come within any of the specific matters listed in section 13(3) of the HCO.

23.  As to section 13(2) of the HCO which governs the civil jurisdiction of this Court, it provides that:

“The civil jurisdiction of the Court of Appeal shall consist of —.

(a) appeals from any judgment or order of the Court of First Instance in any civil cause or matter;

(b) appeals under section 63 of the District Court Ordinance (Cap. 336); and

(c)   any other jurisdiction conferred on it by any law.”

24.  Section 13(2)(a) is relevant as the appellant is seeking to appeal from an order of a judge of the Court of First Instance.  The question that falls to be considered is whether this appeal is from an order of the Court of First Instance in a civil cause or matter within the meaning of section 13(2)(a).

25.  The meaning of “civil cause or matter” in section 13(2)(a) was considered by this Court[16] in So Wing Keung, supra.  Ma CJHC (as the former Chief Justice then was) summarized the applicable principles at [31], of which the following are relevant for present purposes:

(1)  The term “cause or matter” is a reference to the proceedings underlying the particular judgment or order sought to be appealed[17].

(2)  In order to see whether an appeal comes from a judgment or order in a civil cause or matter, one must have regard to the nature of the cause or matter in which the appeal is brought[18].

(3)  In ascertaining the nature of the underlying cause or matter in which the judgment or order under appeal is brought, a flexible approach is to be adopted with some degree of common sense.  The analysis should involve looking at the object and purpose of the relevant cause or matter.  A cause or matter that has as its object or purpose the possible conviction of a person on a criminal charge is an a fortiori situation where the nature is without doubt criminal, but this is not the only situation[19].

26.  In this appeal, the underlying cause or matter is an appeal from the taxation of the appellant’s costs pursuant to the Costs Order.  Notwithstanding that the Costs Order was made in a set of criminal proceedings, the object and purpose of the taxation proceedings, which gave rise to the decision and order of the Judge, is to ascertain the amount of costs that the appellant may recover from the respondent.  The consequence of the taxation does not entail any criminal sanctions or, as in So Wing Keung[20], any “furtherance of a criminal investigation”.  Thus analysed, the proceeding underlying the decision or order sought to be appealed is a civil cause or matter.  This appeal is thus properly listed as a civil appeal, which we have jurisdiction to hear under section 13(2)(a) of the HCO.

F.      Grounds of Appeal

27.  The appellant has advanced a number of grounds and arguments in support of her appeal against the Judge’s dismissal of her appeal for want of jurisdiction, which may be broadly summarised as follows:   

(1)  Wong Tsz Yuk and Jiang Hai Pu were wrongly decided and should not be followed.  It is wrong for the Court to disclaim jurisdiction in order to achieve procedural finality under the CCCO and the CCCR.  (“Ground 1”)     

(2)  In any event, Wong Tsz Yuk and Jiang Hai Pu are distinguishable in that unlike in the two cases, no review of the Master’s taxation has taken place in the present case when the appeal was brought.  Given that different parts of the CCCO or CCCR are engaged, the reasoning in the two decisions concerning finality has no application.  (“Ground 2”)

(3)  Taxation of costs awarded in a criminal case is civil in nature.  The Court of First Instance has jurisdiction to hear an appeal from a Master’s decision under Order 58 of the RHC, and the appellate jurisdiction in the court hierarchy has not been disturbed by the CCCO or the CCCR.  (“Ground 3”)

(4)  Further and alternatively, if the Court of First Instance has no jurisdiction to hear an appeal from taxation of costs in criminal proceedings, the appellant is entitled to appeal Master Kot’s taxation directly to the Court of Appeal by reason of the inherent jurisdiction of the Court of Appeal, Order 59 of the RHC and/or the appellant’s right founded in a statutory contract. (“Ground 4”)

(5) Master Kot did not have jurisdiction to conduct the taxation because the taxing authority under the CCCR is the Registrar of the High Court. The Registrar of the High Court cannot delegate the taxation to a Master. (“Ground 5”)

28.  As to the appeal against what were said to be refusals by the Registrar of the High Court and Master Kot to verify the authority of the taxing authority, it is primarily premised on Ground 5.  Additionally, it was also argued that since the Judge declined jurisdiction, she would have no jurisdiction to grant leave to appeal, hence leave to appeal to the Court of Appeal against the Registrar’s and Master’s refusals should not be required. The arguments for this part of the appeal are collectively referred to as “Ground 6”. 

G.  Our reasons for judgment

G1.  CCCO and CCCR

29.  Before addressing the grounds of appeal, it is necessary to first set out the statutory framework for taxation of costs in criminal cases.  The starting point is section 20(1) of the CCCO which provides that where an order for costs is made by a court or a judge under the ordinance, the court or the judge may order the costs to be taxed.  Section 20(2) stipulates, inter alia, that where the order for taxation is made by a judge of the Court of First Instance[21], the costs shall be taxed by the Registrar of the High Court.  

30.  Under section 22 of the CCCO, the Chief Justice may make rules providing for matters relating to taxation of costs and reviews of such taxation.  Rule 5(1) of the CCCR, which was made pursuant to section 22, provides that where costs are ordered to be taxed, the costs must be taxed by the taxing authority in accordance with rules 5, 6 and 7.  In line with section 20(2) of the CCCO, rule 5(2)(b) of the CCCR stipulates that the Registrar of the High Court is the taxing authority in the case of proceedings in the Court of First Instance or the Court of Appeal.  Rule 5(3) empowers the taxing authority to appoint or authorize the appointment of public officers as taxing officers to act on its behalf. 

31.  Rules 6 and 7 of the CCCR respectively regulate the claim for costs to be submitted by the claiming party for taxation and the conduct of the taxation.  They are not pertinent to the issues in this appeal.

32.  A right to review the taxation is provided for in section 21 of the CCCO.  Under the section, a party to the proceedings in respect of whom costs have been taxed who is aggrieved by that taxation may apply for the taxation to be reviewed, in the case of costs taxed under section 20(2)(b), to the Registrar of the High Court. 

33.  Rule 8(2) of the CCCR sets out the procedures for review, which include: an application for review of taxation must be made to the taxing authority within 21 days of the receipt of the rule 7(4) notice; Order 62 rules 33 and 34 of the RHC shall, subject to rule 8, apply with such modifications as may be necessary to make the same applicable to the circumstances of the review; and any party to the proceedings can request the taxing authority to give reasons in writing for its decision, and the taxing authority must comply with the request[22]. 

G2.    Ground 5: Taxing authority

34.  We begin with Ground 5, which concerns whether the power of the taxing authority designated by the CCCO and CCCR may be exercised by a Master. This ground, strictly speaking, is not related to the central issue in the case, namely, whether a judge of the Court of First Instance has jurisdiction to hear an appeal from taxation of costs of a criminal case.  However, it is a core complaint of the appellant that Master Kot did not have authority or power to conduct the taxation, and this complaint has repeatedly featured in the appellant’s submissions on the other grounds of appeal.  This complaint also underlines the appellant’s appeal against what she regarded as refusals by the Registrar and Master Kot to verify the authority of the taxing authority in her case.  We would therefore deal with this ground first.

35.  As noted above, section 20(2) of the CCCO provides that:

“Where an order that costs be taxed is made under this section —

(a) … ;

(b) by a judge or by the Court of Appeal, those costs shall be taxed by the Registrar of the High Court.”

36.  As mentioned in [30] above, rule 5(1), (2)(b) and (3) of the CCCR further provide that:

“(1) For the purposes of section 20 of the Ordinance, where a court orders that costs are to be taxed, those costs must be taxed by the taxing authority in accordance with this rule and rules 6 and 7.”

“(2) Subject to subrule (3), the taxing authority is —

(a) … ;

(b) the Registrar of the High Court in the case of proceedings in the Court of First Instance or the Court of Appeal.”

“(3) The taxing authority can appoint or authorize the appointment of public officers as taxing officers to act on behalf of the taxing authority under this rule and rules 6 and 7 in accordance with directions given in writing or on behalf of the taxing authority.”

37.  The term “Registrar of the High Court” is not defined in the CCCO or the CCCR. 

38.  Section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 (“IGCO”) defines “Registrar of the High Court” to mean “the Registrar of the High Court and any Senior Deputy Registrar, Deputy Registrar or Assistant Registrar of the High Court”.  By section 2(1) of the IGCO, the provisions of the ordinance shall apply to any other ordinance in force save where the contrary intention appears either from the IGCO or from the context of any other ordinance or instrument.  Applying the definition of “Registrar of the High Court” in section 3 of the IGCO to the CCCO and CCCR, the taxing authority under section 20(2) of the CCCO and rule 5(2)(b) of the CCCR will include a Deputy Registrar of the High Court.

39.  The point is fortified by section 38(2) of the HCO which provides that “subject to rules of court, all the jurisdiction, powers and duties conferred or imposed on the Registrar may be had, exercised or performed by a Master”. Under section 37(2) of the HCO,Senior Deputy Registrars, Deputy Registrars and Assistant Registrars may be called Masters. 

40.  It is thus abundantly clear from the above statutory provisions that under section 20(2) of the CCCO and rule 5(2)(b) of the CCCR, a Master of the High Court will have all the powers under the CCCO and CCCR to tax costs in criminal proceedings and to review such taxation.

41.  The appellant argued that after the enactment of the CCCO and CCCR, sections 37(2) and 38(2) of the HCO no longer apply and a Master of the High Court may not perform the power and duties of the Registrar of the High Court in taxation of costs in criminal proceedings.  It was said that had it been otherwise, rule 5(2)(b) of the CCCR would be rendered redundant.  The appellant further submitted that applying the reasoning in Wong Tsz Yuk, where there are inconsistencies between the RHC and the CCCO or CCCR, rule 5(2)(b) of the CCCR should prevail.     

42.  We do not accept the submission.  In the first place, there are no inconsistencies between the HCO and the CCCO or CCCR.  Rule 5(2)(b) of the CCCR only provides that the Registrar of the High Court is the taxing authority for taxation of costs under section 20(2)(b) of the CCCO.  It does not define who is included in the designation of “Registrar of the High Court”.  Nor does it stipulate that the power as the taxing authority must be exercised by the Registrar personally.  There is no basis, both as a matter of statutory interpretation or legislative intent, for the argument that only the Registrar of the High Court himself can conduct the taxation.  

43.  Secondly, in construing rule 5(2)(b) and ascertaining who is the taxing authority, it is legitimate to also have regard to the provisions in the IGCO, in light of section 2 of the IGCO.  Reading section 20(2) of the CCCO and rule 5(2)(b) of the CCCR together with section 3 of the IGCO, the taxing authority prescribed by the statutory scheme under the CCCO and CCCR extends to include a Master of the High Court.  As pointed out in [7] of Wong Tsz Yuk, the jurisdiction of the Registrar of the District Court and the Registrar of the High Court to tax costs in criminal proceedings and to review such taxation under sections 20 and 21 of the CCCO “may be performed by a District Court master and a High Court master as the case may be”.

44.  In light of our conclusion that the taxing authority under the CCCO and CCCR includes a Master of the High Court, it is not necessary for us to deal with the appellant’s submission that there could not have been a valid delegation of authority by the Registrar under rule 5(3) of the CCCR because Master Kot is a judicial officer and not a public officer.  Clearly the appellant had misunderstood the position and rule 5(3) is not engaged.  Similarly, it is not necessary to consider the appellant’s complaint about disparity of treatment in the taxation of costs claimed by the prosecution and that of costs claimed by the defendants; suffice to say the complaint is based on a misunderstanding of the court practice and procedure.

45.  For the reasons above, the appellant’s complaint that Master Kot has no authority or power to tax her bill of costs and the Registrar had wrongfully delegated his power as taxing authority cannot stand.  We reject Ground 5.

G3.    Ground 1: Correctness of Wong Tsz Yuk and Jiang Hai Pu

46.  We return to Ground 1 which challenges the correctness of the decisions in Wong Tsz Yuk and Jiang Hai Pu.

47.  It is not necessary to repeat in its entirety the legal reasoning underlying the conclusion reached in Wong Tsz Yuk and Jiang Hai Pu that a judge of the Court of First Instance has no jurisdiction to hear an appeal from a review of taxation of costs in criminal cases.  It is sufficient to summarise the principles relevant to the present appeal as follows:

(1)  The courts in Hong Kong do not have inherent jurisdiction to award costs in criminal cases. Such jurisdiction is entirely dependent on statute.  Ancillary to the jurisdiction to award costs are the powers to tax and review the costs, which are also dependent on statute: Wong Tsz Yuk at [17]; and Jiang Hai Pu at [23]).

(2)  The CCCO and the CCCR are a complete and self-contained code regulating the law and practice of costs in criminal cases, with the aim of removing all the anomalies and inconsistencies that existed in the laws on costs in criminal cases before the enactment of the legislation: Wong Tsz Yuk at [38]; and Jiang Hai Pu at [29].

(3)  The legislature had made a deliberate decision to limit the right to review taxation of costs to the taxing authority under section 21 of the CCCO.  Before the enactment of the CCCO and CCCR, applications could be made pursuant to Order 62 rule 35 of the RHC to a judge to further review the decision of a master made in a review.  This is not permissible after the new regime under the CCCO and CCCR, as they together provide a complete mechanism to standardise the applicable law and practice in costs in criminal cases, including those governing the right to review taxations, at all levels of court, with the exception of the Court of Final Appeal: Wong Tsz Yuk at [47]; and Jiang Hai Pu at [29].

48.  We are not convinced, and we reject the appellant’s submission, that the legal analysis in Wong Tsz Yuk and Jiang Hai Pu, including the principles set out above, are wrong.  In both cases, the courts had received comprehensive submissions from court-appointed amici curiae.  There had been a meticulous examination of the relevant legislative history and the reform introduced by the CCCO and the CCCR in the two decisions.  We see no basis to depart from the legal conclusion reached in the two decisions. 

49.  Indeed, the thrust of the appellant’s arguments on the restrictions to the right to appeal and the need for recognising a jurisdiction to correct any mistakes that may have been made by a taxing master had already been ventilated by the amicus curiae in Jiang Hai Pu (at [21]).  This Court had, after reviewing the relevant authorities and for the reasons given in [32] to [45] of the judgment, rejected the arguments. 

50.  We are not persuaded that Wong Tsz Yuk and Jiang Hai Pu are wrongly decided.  We accordingly reject Ground 1.

G4.    Ground 2: Are Wong Tsz Yuk and Jiang Hai Pu distinguishable?

51.  Under Ground 2, the appellant sought to distinguish Wong Tsz Yuk and Jiang Hai Pu on the basis that (i) her appeal against the Master’s taxation decision was brought before a review of the taxation whereas the appeals in the two decisions were brought after the review; and (ii) her appeal concerns interpretation of the statutory provisions whereas the appellants in Wong Tsz Yuk and Jiang Hai Pu were seeking to review the amount taxed.

52.  We are in agreement with the Judge that there is no valid distinction between the present appeal and the two cases.  In addition to the reasons given by the Judge (at [22] of the Decision, see [16] above), we would also observe that, on the appellant’s argument, an aggrieved party would enjoy an automatic right of appeal to a judge of the Court of First Instance at any time before applying for a review of the taxation under section 21 of the CCCO and rule 8 of the CCCR, whereas an aggrieved party who has gone through the review procedure in accordance with the statutory framework would have no right to appeal.  In our view, it cannot be right that a party who has not exhausted the statutory review procedure should stand in a better position than someone who has followed the statutory regime to apply for a review.  Such a result not only defies common sense, but also makes a mockery of the statutory review procedure.  It is also inconsistent with the legislative intent that an aggrieved party is only allowed one review of the taxation decision and that the review is to be dealt with by the taxing authority: see Jiang Hai Pu at [26].

53.  Moreover, the appellant has not been able to point to any provision in the CCCO or the CCCR that confers jurisdiction on a judge of Court of First Instance to hear appeals from the taxation by the taxing authority.  As mentioned above (at [47(2)]), the CCCO and the CCCR together form a complete and self-contained code regulating the law and practice of costs in criminal cases.  The absence of an express statutory provision within the CCCO and CCCR conferring an appellate jurisdiction on a judge of the Court of First Instance further highlights the unsustainability of the appellant’s case.

54.  We see no valid basis for distinguishing Wong Tsz Yuk and Jiang Hai Pu.  Ground 2 therefore fails.

G5.    Ground 3: Jurisdiction to appeal under Order 58 of the RHC

55.  Ground 3 is directed at [26] of the Decision and raises the question of whether Order 58 of the RHC could have provided the jurisdictional basis for a judge of the Court of First Instance to hear an appeal from a taxation of costs of criminal proceedings.

56.  This particular point had been considered and rejected in Wong Tsz Yuk.  At [60] of the judgment, Poon J said: 

 “For completeness, I would like to deal with two minor points.  The first point was raised by me with the parties at the hearing, which is this: even if Order 62, rule 35 of RHC is not engaged, can I still hear the appeal by virtue of Order 58?  Both Mr Chan and Mr Leung submitted that I could not do so.  I agree.”

57.  Although Poon J had not elaborated on the reasons, we have no doubt that his conclusion is correct.  In our judgment, given the specific review mechanism provided by section 21 of the CCCO and rule 8 of the CCCR, an aggrieved party cannot avail himself of the general right to appeal to a judge in chambers provided under Order 58 of the RHC.  A general right to appeal a taxation of costs in criminal proceedings to a judge in chambers under Order 58 is fundamentally at odds with the CCCO and the CCCR forming a complete and self-contained code to regulate the practice and procedure relating to taxation of costs in criminal proceedings.  It is irreconcilable with the deliberate decision of the legislature to limit the right to review taxation of costs to the taxing authority and not to provide for an appeal mechanism.  It would also wholly frustrate the purpose of the wholesale statutory reform in removing the right to review before a judge: see Wong Tsz Yuk at [47].  

58.  We note that the Judge rejected the appellant’s arguments on a different basis (see [17] above).  The Judge considered that Order 58 is inapplicable because it has no application to criminal proceedings by reason of Order 1 rule 2(3) of the RHC.  Having regard to the discussion in section E above and our view that the taxation proceedings underlying the Judge’s decision is in the nature of a civil cause or matter, we do not think it is apt to rely on Order 1 rule 2(3). 

59.  For the reasons given above, we are of the view that Order 58 of the RHC does not provide the jurisdictional basis for the appellant’s appeal against the taxation to the Judge.  We therefore reject Ground 3.

G6.    Ground 4: Right to appeal directly to the Court of Appeal

60.  Ground 4 is an alternative ground to the appellant’s primary contention that the Court of First Instance has jurisdiction to hear an appeal from the taxation of costs in criminal proceedings, which we reject.  Under this ground, the appellant argued that the Court of Appeal should and has power to hear her appeal from the Master’s taxation decision by reason of its inherent jurisdiction and Order 59 of the RHC as well as a “contractual” right that stems from her payment of the prescribed taxing fee and filing of the Notice of Appointment to Tax.  For the reasons set out below, we reject the appellant’s arguments. 

61.  Firstly, as held in So Wing Keung, supra, at [31(1)] to [31(6)], the Court of Appeal is a creature of statute, and its jurisdiction is restricted by the HCO.  Hence, while the Court of Appeal does have inherent jurisdiction, it is confined to doing whatever is necessary within the jurisdiction it already has.  The reliance on the inherent jurisdiction of the Court of Appeal to contend that there is a right to appeal the Master’s taxation decision to the Court of Appeal is therefore misplaced. We also do not see the relevance of the two authorities handed up by the appellant at the hearing, Attorney General v A Deputy District Court Judge (unreported) HCMP 439/1991, 14 June 1991, and Judge’s Reservation No. 1 of 1994 & A.G.’s Reference No. 1 of 1994 (unreported) CAQL 1/1994, 21 June 1994, as they concern the court’s power to make a costs order in criminal proceedings.   

62.  Secondly, as to the reliance on Order 59 of the RHC, it was pointed out in So Wing Keung, supra, at [31(15)] that Order 59 “is applicable only where there is jurisdiction to lodge an appeal in the first place”, and “does not itself provide any basis for founding jurisdiction”. 

63.  Thirdly, as previously held by this Court, a litigant cannot pick and choose the forum, and the rules of court do not allow a party to bypass the structure of the courts and insist on bringing an appeal from a master’s order directly to the Court of Appeal: see Official Receiver v Brown Colvin Morton [2019] 2 HKLRD 166 at [21], [23] and [24]; and Re Citrend Services Ltd [2007] 1 HKLRD 381 at [14] to [16].  The reliance on Order 59 of the RHC is therefore inapt since Order 58 rule 1 of the RHC stipulates that, exceptions aside[23], an appeal shall lie to a judge of the Court of First Instance from any judgment, order of decision of a master. 

64.  Fourthly, as to the argument that the appellant has a “contractual” right that stems from her payment of the prescribed taxing fee and the filing of Notice of Appointment to Tax, its relevance is not understood.  In so far as she contended that because she had paid the taxing fee pursuant to rule 10(2)(b) of the CCCR, she had a right based on a statutory contract to have her bill taxed by the correct authority, we have in the discussions under Ground 5 rejected her challenge to the authority of Master Kot to tax her bill.  In any event, this contention has no bearing on the issue of whether there is a right in law to appeal the Master’s taxation directly to the Court of Appeal.       

65.  This ground therefore fails.

G7.    Ground 6: Refusal to verify the authority to tax

66.  Ground 6 relates to the appeal against what the appellant referred to as refusals by the Registrar of the High Court and Master Kot to respond to her requests for verification of the authority of the taxing authority involved in taxing her bill of costs.  The circumstances relevant to this part of the appeal can be summarised as follows:

(1)  As mentioned in [9] above, on 6 March 2019, a rule 7(4) notice was issued by Master Kot to inform the parties of the amount of costs allowed and payable to the appellant after taxation. 

(2)  By an undated letter faxed to the court on 11 March 2019, the appellant referred to the rule 7(4) notice and requested the Registrar of the High Court to verify whether there was “any proof of appointment or authorization and written directions for Master Kot to be appointed to tax” her bill of costs, and a re-hearing of the taxation with the costs of the previous hearing be to her in the event there was a want of authority.  The appellant also requested in the letter that the rule 7(4) notice be amended and also an extension of time to review the taxation pending her appeal to a judge of the Court of First Instance.

(3)  By letter dated 14 March 2019, the High Court Registry referred to the appellant’s letter and enclosed a revised table of calculation which revised the amount allowed upward.  There was, however, no reply to the appellant’s request for verification of Master Kot’s authority to tax her bill.    

(4)  After the Judge’s dismissal of her appeal, the appellant wrote to Master Kot on 5 May 2019 applying for an extension of time for a re-trial or review of the taxation. Master Kot directed on 9 May 2019 that a summons should be filed for the application for time extension. 

(5)  The appellant replied by letter dated 10 May 2019 to Master Kot and the Registrar of High Court, in which she disputed Master Kot’s authority to direct that a summons be filed for the time extension application.  In reply, Master Kot directed on the same day that the applicant shall either make the application by inter-partes summons or with the consent of the respondent.

(6)  By directions given on 14 May 2019, the Registrar of the High Court drew the appellant’s attention to section 38(2) of the HCO and pointed out that a Master can tax the appellant’s bill of costs.  The Registrar also referred to AXA China Region Insurance Co Ltd v Leong Fong Cheng [2016] 6 HKC 220 in which Lam VP (as Lam PJ then was) held at [53] that the court generally will not take heed of applications advanced by litigants in correspondence and that a party who wishes to make an application should apply by summons, supported by affidavits or affirmations. 

67.  On these facts, the appellant complained that the Registrar of High Court and Master Kot failed to verify the authority of Master Kot to tax the costs and that the Registrar should “re-tax” the costs himself.  The appellant also argued that leave to appeal is not required and she should be allowed to appeal the refusals or failures to verify the authority of Master Kot directly to the Court of Appeal. 

68.  We are of the view that this part of the appeal and Ground 6 are untenable.  In light of our conclusion under Ground 5 that a Master of the High Court has the authority to tax the costs in criminal proceedings under CCCO and CCCR, the complaint underlying this part of the appeal and Ground 6 falls away.    Further, for the reasons we gave in rejecting Ground 4, the argument that leave to appeal is not required and that the appellant may appeal to the Court of Appeal directly from the refusals or failures of the Registrar and the Master to accede to her requests must also be rejected.  More fundamentally, the events relied on by the appellant in mounting this part of the appeal all took place after her appeal to the Court of First Instance, and some took place even after the Judge dismissed the appeal.  Even if there had been wrongful refusals to accede to the appellant’s requests for verification, they were subsequent to the taxation carried out by the Master and the Judge’s dismissal of the appeal, which are the subject matter of this appeal.  As such, they could not have been included as part of this appeal.

69.  For these reasons, we reject Ground 6 and this part of the appeal.    

G8. The challenge to Master Kot’s taxation decision

70.  The appellant has also put forward arguments challenging the correctness of Master Kot’s taxation decision, including the basis of taxation and the disallowance of certain items of costs claimed by the appellant, such as the costs of the carer.   As we have concluded that neither the Court of First Instance or the Court of Appeal has jurisdiction to hear an appeal from the Master’s taxation, it does not fall on us to express any view on the appellant’s challenge to the taxation decision.

H.  Disposition and costs

71.  For the above reasons, we dismiss the appeal. 

72.  The respondent asked that costs follow the event.  The appellant however asked that her costs be paid by the respondent even if she lost the appeal. 

73.  We would make an order nisi that there be no order as to the costs of the appeal.  Principally we have regard to the fact that the appeal is mainly concerned with legal arguments.  Other than the submission on the inapplicability of Order 1 rule 2(3) of the RHC (see [58] above), we have rejected all the grounds of appeal and arguments raised by the appellant.  We therefore see no justification in awarding to the appellant her costs of the appeal.  On the other hand, we take note of the appellant’s submission that the respondent’s submission had not dealt with or responded to her legal arguments, and thus was not of much assistance in the determination of this appeal. 

74.  We would also direct that: (1) Any party who wishes to vary the costs order nisi should within 14 days of the handing down of this judgment lodge and serve a written submission setting out the reasons (not more than 2 pages and in font size 14); (2) The other party may within 14 days thereafter lodge and serve written submission in reply (not more than 2 pages and in font size 14); and (3) If no application to vary is received within 14 days, the order nisi shall become absolute.