HKSAR v. CHAN HING KAI

CACC 65/2017

[2020] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 65 OF 2017

(ON APPEAL FROM HCCC NO 1 OF 2016)

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D E C I S I O N   O N   C O S T S

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Hon Zervos JA (giving the Decision on Costs of the Court):

1.  Having successfully appealed against his conviction for the offence of trafficking in a dangerous drug, the applicant applies for his costs at trial which he privately funded. He makes no application for his costs on appeal as he was on legal aid.

2.  We granted the appeal on the basis that there was a material misdirection in the trial judge’s summing up to the jury and we considered that in the circumstances of the case it was not appropriate to invoke the proviso.  We quashed the applicant’s conviction and ordered that he be retried on a fresh indictment. 

3.  The courts in Hong Kong exercising criminal jurisdiction can only award costs if there is an express statutory provision to do so.  The power to award costs in criminal cases is primarily governed by the Costs in Criminal Cases Ordinance, Cap 492, (the Ordinance) which came into force on 17 January 1997.

4.  By virtue of section 9(1) and (2)(a) of the Ordinance, where the Court of Appeal allows an appeal against conviction under section 82 of the Criminal Procedure Ordinance, Cap 221, it may order that costs be awarded to the defendant.

5.  The general principles applicable to costs in criminal cases are set out under section 15 of the Ordinance.  It provides, amongst other things, that costs awarded in any criminal proceedings should be “just and reasonable” and should not be punitive, but should be such sum as appear reasonably sufficient to compensate any party for any expenses properly incurred by him in the course of those proceedings, including proceedings preliminary or incidental thereto. 

6.  On the question of costs to a successful appellant against conviction, the approach laid out in R v Kwok Moon-yan [1989] 2 HKLR 396 has been applied and followed.  In that case, the Court of Appeal stated that the exercise of the power to award costs is in the unfettered discretion of the court, and falls to be exercised in the light of the circumstances of each case, but the normal practice is that an order should be made unless there are positive reasons for not making such an order, including (i) where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; or (ii) where there is ample evidence to support a conviction but it was quashed on a technicality which has no merit.  It was further noted by the Court that, in the exercise of its discretion to award costs, separate consideration was to be given in the application of this approach to each level of the courts in which proceedings had taken place.

7.  This approach was endorsed by the Court of Final Appeal in Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, which was concerned with an appeal of the Court of Appeal’s decision in refusing costs to a defendant who had successfully appealed his conviction on the basis of a material misdirection and was ordered to be retried. 

8.  Li CJ, giving the judgment of the Court, having reviewed the approach in Kwok Moon Yan and the relevant principles, stated:

“16. It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionary exercise. However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”

9.  Li CJ agreed with the Court of Appeal’s decision not to award costs of the trial to the defendant. The rationale of the decision was that even though the conviction was quashed because of a misdirection, there was still ample evidence that the appellant was dishonest, and the quashing of the conviction was not inconsistent with the verdict of the jury.

10.  In HKSAR v Wong Tak Keung (No 2) (2015) 18 HKCFAR 158, the Court of Final Appeal held that where a defendant was initially convicted, but subsequently had his conviction quashed on a point of law, grounds for refusing costs could arise out of the conduct with which he was charged and the general setting of such conduct without undermining the jury’s findings. 

11.  On the question of costs to a successful appellant against conviction who is ordered to be retried, Li CJ in Ting James Henry noted on this issue the following comments of Silke VP in R v Man Wai Keung (No 2) (1992) 2 HKCLR 207, at 214:

“… Whether or not a successful appellant who has been ordered to be retried will get his costs, or any portion of them, of the process which has gone before that decision was made will, of course, lie for the unfettered discretion of this Court applying the principles which Kwok Moon Yan attempted to set out. The fact that a retrial has been ordered and the reasons for the making of such an order will be additional factors to be considered in the exercise of that discretion.”

12.  In HKSAR v Wu Wing Kit & Anor [2017] 3 HKC 490, the Court of Appeal stressed that where a retrial is ordered, costs may be awarded to a successful appellant even where such an appellant would otherwise have not been awarded costs because of the onerous nature of a retrial.  Lunn VP, giving the judgment of the Court, explained:

“38. ... As we stated in our judgment in our consideration of whether or not to order a retrial, an order for a retrial is a considerable burden on the appellants for a variety of reasons. One of the burdens is the cost to them of such a retrial, they have already incurred costs of the first trial …”

13.  In the context of the particular facts and circumstances of that case, Lunn VP explained that even though the judge erred in his approach to his interpretation of the phrase “having reasonable grounds to believe”, the Court was nevertheless of the view that there were positive reasons for making a different order because the appellants had brought suspicion on themselves.  In acknowledging the burden of the costs to the appellants of a retrial, the Court exercised its discretion by finding that “justice is best served” by making an order that they be awarded half of their costs of the trial.

14.  As a general rule, a successful defendant on appeal should be awarded his costs unless there are positive reasons for not doing so.  Such reasons may arise because of something the defendant has said or done, or any misleading behaviour on his part. The ordering of a retrial and the reasons for such an order will be relevant considerations on the question of costs.  However, overall such an order will be made in favour of a successful appellant if a retrial is ordered and it is “just and reasonable” to do so.

15.  In the present case, the misdirection by the judge related to the failure of the applicant, through his counsel, to put a conversation to an accomplice witness for the prosecution, which was critical to the issue that the applicant had been framed by him.  The misdirection went to the jury’s assessment of the credibility of the applicant who had testified that his out-of-court statements were the product of oppressive conduct by the police and that the accomplice witness was not telling the truth.

16.  Putting aside the applicant’s alleged admissions, which he denied making, and the evidence of the accomplice witness, the undisputed evidence was that the applicant went to and returned from the Philippines on the same flight as the two drug couriers, that he knew them, and that he had recorded on his mobile telephone their telephone numbers, a screenshot of the sport shoes of one of them (both drug couriers concealed some of the drugs in their shoes), as well as making contact with one of them immediately upon their arrival in Hong Kong.  In his video-recorded interview, the applicant denied being involved in the trafficking of the drugs by the other two drug couriers, but claimed that he had been asked by an Indian friend to travel with them and watch them board and alight from the aircraft for which he was to receive a reward of $5,000.

17.  In considering the question of costs at trial in the context of those proceedings, we would have found that the applicant brought suspicion on himself, and we would have refused his costs.  However, we also need to consider the issue in the context of the applicant having successfully appealed against his conviction and ordered to be retried for the offence.  The decision to order a retrial and the reasons for it are additional factors to be considered in the exercise of the Court’s discretion to award costs to a successful appellant.

18.  It may be argued that the applicant was wholly or partly responsible for the collapse of the case because of his failure to comply with a rule of practice in that a conversation adduced in evidence by the applicant was not put to the accomplice witness (the first matter).  The applicant denied that the conversation he claimed he had with the accomplice witness was a recent invention when that was put to him in cross-examination.  Neither prosecuting counsel nor defence counsel made reference to the conversation in their closing addresses to the jury.  Nor was the matter raised by the judge with counsel that he was considering making comment about the matter in his summing-up to the jury.  As we have pointed out in our judgment, whilst the judge earnestly attempted to address the matter, he did so in a manner that deprived the applicant of a fair trial.  It was for this reason that we ordered the applicant to be retried for the offence.

19.  The applicant now has to bear the burden of the costs of a retrial, and in the circumstances of this case, we find it would not be appropriate to deny him his costs at trial.  See HKSAR v Ng Chun To Raymond and Anor, unrep., CACC 178/2010, 19 November 2013, at [21].

20.  We order that the applicant have his costs at trial, to be taxed if not agreed.