HKSAR v. LEE TSANG KONG

HCCC169 & 232/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS.169 AND 232 OF 2001

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R U L I N G

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1. On 28 June 2002, after 58 days of trial, I discharged the jury in relation to the 3rd count. The 3rd count was preferred against the 1st, 2nd and 4th accused and alleged that between 1 December 1995 and 30 April 1996, they conspired together and with other persons to defraud Hang Seng Bank Limited. There are seven counts altogether in the indictment and a total of four accused persons. The 4th accused is only indicted on the 3rd count.

2. On 17 September 2002, Mr C.Y. Wong SC appeared on behalf of the 4th accused and applied for the costs of the trial. Mr Wong relies on section 17 of the Costs in Criminal Cases Ordinance, Cap.492 ("the Ordinance"), which reads as follows :

"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."

3. Ms Draycott appearing for the prosecution submits that because of section 25 of the same Ordinance, section 17 is not applicable to the present matter. Section 25 states :

"This Ordinance shall not apply to criminal proceedings in respect of offences committed before the coming into operation of this Ordinance."

She makes that submission without conceding that there had been any unnecessary or improper act or omission by the prosecution in the trial. The Ordinance came into force on 17 January 1997. As mentioned above, the offence of conspiracy to defraud alleged in the 3rd count, which was the only count against the 4th accused, was allegedly committed between 1 December 1995 and 30 April 1996 which was clearly before the commencement of the operation of the Ordinance.

4. The 2nd count against the 1st, 2nd and 3rd accused alleged an offence between 1 July 1995 and 30 April 1998 which was after the commencement of the Ordinance and the 4th count against the 1st accused alleged an offence between 1 February 1996 and 30 April 1998, also after the commencement of the Ordinance. The 6th count against the 1st, 2nd and 3rd accused alleged an offence between 1 November 1995 and 31 January 1998, also after the commencement of the Ordinance and the last count against the 1st accused alleged an offence between 1 January 1996 and 31 January 1998, again, clearly after the commencement of the operation of the Ordinance.

5. Section 25 would appear to be the authority for the proposition that section 17 does not apply to the 4th accused in the present case. However, Mr Wong contends that section 25 has no application to the present case because the offences in counts 2, 4, 6 and 7 were committed after the operational date of the Ordinance.

6. Ms Draycott's reply is that the 4th accused's costs were incurred solely in respect of count 3 of the indictment which alleges a conspiracy before the Ordinance became effective and therefore the 4th accused's costs are irrecoverable. She submits that the applicant was only a party to the proceedings in respect of the offence with which he was charged and those are the proceedings in which his costs were incurred. She submits that he was not a party to the proceedings in respect of offences committed by others, and the fact that he was present during the trial whilst those proceedings were conducted does not make him a party. She submits that the interpretation relied upon by Mr Wong would mean that a person's entitlement to costs would depend on the date of his co-defendants' crimes and so any such entitlement would disappear if his co-defendants were, for example, severed from the indictment or were never joined in the first place or absconded, died or were never apprehended. She submits that for the Ordinance to have any certainty, the relevant dates must be the dates between which the crime alleged against the applicant was alleged to have been committed, for those are the proceedings to which he is a party.

7. I agree with that submission and in my judgment, for the purpose of determining whether the Ordinance applies, only the date of the crime alleged against the 4th accused in the 3rd count should be taken into consideration. He was only concerned with that 3rd count and he was a party to the proceedings only insofar as the 3rd count was concerned.

8. Mr Wong's second point in relation to section 25 is that it has no application to criminal proceedings where it has not been proved that offences alleged against the defendant have been committed. He submits that if the legislature had intended section 25 to cover "alleged offences" or "offences alleged to have been committed", it would have said so in clear terms. This point was however unsuccessfully argued in The Secretary for Justice v. Heung Chin Tong & Others, HCMA154/1998, where Mayo JA (as he then was) said that :

"It is very clear from a consideration of the Ordinance as a whole that it is artificial to attempt to separate the concept of an offence from criminal proceedings which are referred to in section 25."

He continues :

"It is not a constructive exercise to contemplate criminal proceedings divorced from the commission of an offence.

What is envisaged by the Ordinance is criminal proceedings and this includes the offence or alleged offence which is the subject matter of the criminal proceedings.

There can be no doubt that the Ordinance does not have a retrospective effect to include criminal proceedings which were instituted prior to the date when the Ordinance came into effect."

9. A similar ruling was made by Keith J in The Secretary for Justice v. Chan Cheung Chor, HCAL102/1998, where the learned judge said :

"However, that Ordinance [the Costs in Criminal Cases Ordinance] did not apply to the present case, because section 25 provides that it is not to apply to criminal proceedings in respect of offences committed before the Ordinance came into operation. The Ordinance only came into operation on 17th January 1997, i.e. well after the date of the offences with which the Respondent had been charged."

10. In my judgment, "offence" as used in section 25 clearly includes "alleged offence".

11. Mr Wong's submission continues that if the Costs in Criminal Cases Ordinance does not apply to the present case, then resort can be had to the UK "Costs in Criminal Proceedings Practice Directions 1991", the wording of which is similar to the wording of section 17 of the Ordinance. His authority for that proposition was R. v. Ng Yui Kin & Others [1983] HKLR 356 where it was held that Hong Kong was to follow practice directions in England in awarding costs to a defendant.

12. Ms Draycott's submission is that the power to award costs in criminal proceedings has always been governed by statute. This proposition was decided in a number of Hong Kong cases, for example, A.G. v. Ho Yuen Kwong [1971] HKLR 259, A.G. v. Ip Wai Kwong [1982] HKLR 93, A.G. v. A Deputy District Court Judge [1991] 2 HKLR 507 and A.G. v. Lam Sau Ki, Criminal Appeal No.442 of 1991. In that last case, the Court of Appeal held that that court had no inherent jurisdiction to award costs. Ms Draycott submits that the power to award costs is not a matter of practice and procedure. Practice and procedure is the way in which a legal power should be exercised rather than the law that establishes or defines that power. In R. v. Chu Kwan Kong & Others [1977] HKLR 371, Mr Commissioner O'Connor said :

" In my view the phrase 'practice and procedure' relates to the means by which a legal right or duty is enforced or a legal rule applied as distinguished from the law which establishes or defines that right, duty or rule. ..."

The case of Chu Kwan Kong was approved in Ng Yui Kin (supra). In both that case and R. v. Kwok Moon Yan and Lok Man Chiu [1989] 2 HKLR 396, there was an existing Hong Kong statutory power to award costs and the English Practice Directions were held to govern the application of those powers.

13. In my judgment, therefore, there is no statutory power to award the applicant his costs and the English Practice Directions of 1991 have no application to the present matter.

14. The 4th accused's application for costs is therefore dismissed.