HKSAR v. TANG SIU FUNG AND ANOTHER

[English Translation - 英譯本]
CACC 418/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 418 OF 2008

(ON APPEAL FROM HCA NO.158 OF 2008)

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Decision on Costs

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Hon Cheung, J.A. giving the decision on costs of the Court:

Application for Costs of Appeal

1. On 25 January 2010, we allowed the appeal of the two appellants and quashed their convictions.  The two appellants now make an application for costs of the appeal.  The parties tendered their written submissions to the Court in relation to the application. We make our decision on the application upon consideration of the written submissions by this decision in writing.

Legal Principles

2. Pursuant to Section 9(1) of the Costs in Criminal Cases Ordinance (Cap. 492 of the Laws of Hong Kong), where the Court of Appeal allows an appeal to which this Section applies, the Court of Appeal may award costs to the Appellants.  Pursuant to Section 15(a) of the Ordinance, the costs shall not be punitive but shall be such sums to compensate.  The orders for costs should normally be made in favour of the Appellants unless there are specific reasons of opposition for not doing so from the respondent.  Such reasons for consideration by the Court of Appeal include: the grounds of appeal and the conduct of the various parties in the appeal hearing (including the conduct of the legal representatives for the appellants), See: HKSAR v Ng Shui Laun （香港特別政區訴吳瑞倫）[2004] 2 HKLRD 582 and HKSAR v Chiu Fung Kuen (CACC 475/2001).

The Stance of the Respondent

3. In the present case, there was no opposition from the respondent against the award of costs to the two appellants save and except that the respondent did not agree to awarding them full costs but only 50% of it.  The respondent argued that although the two appellants had put forward multiple grounds of appeal, only one of them served some useful purpose.  The respondent further argued that at trial, counsel for the appellants failed to assist the Court to clarify the question raised by the jury, nor did they assist the court to formulate any further directions to be given to the jury in response to the question.  The jury found the two appellants guilty under these circumstances, which led finally to this appeal as well as the appeal being allowed.

The decision of this Court

4. This Court held that the two appellants should be awarded full costs.  Although they put forward multiple grounds of appeal, this Court allowed the appeal on the basis that the trial judge failed to give further direction on the question of the jury.  When the appeal was heard, most of the arguments mainly focused on the discussion of this issue.  During the appeal hearing, neither party wasted much time on the discussion of other issues.  Besides, despite the fact that at trial, counsel for the two appellants did not assist the Court in tackling the question raised by the jury, this Court would not hold it against the appellants and withhold from awarding them full costs.  In the present case, the “conduct of counsel” may be a factor to be taken into consideration when the costs of the trial are being dealt with. However, none of the appellants seek an award of the costs of the trial.

Conclusion

5. We order that the respondent is to pay the two appellants' costs of the appeal, such costs to be taxed.