HKSAR v. WONG WAH YEE

CACC 40/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 40 OF 2000

(ON APPEAL FROM HCCC 79 OF 1999)

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J U D G M E N T

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Hon Stock JA:

On 17 November 2000 we dismissed this applicant's application for leave to appeal against conviction on two charges of attempted robbery. The applicant then sought a certificate from this court pursuant to the provisions of section 32 of the Court of Final Appeal Ordinance, Cap 484, that certain points of law of great and general public importance were involved in the decision. We heard and determined that application on 3 May this year. We dismissed the application and, in doing so, we pointed out that of the three questions posed for suggested certification, two had misunderstood the issue in the case as well as the judgment delivered; and that the second was, for reasons we had provided in the judgment from which it was sought to appeal, entirely bereft of any merit. So devoid of merit was the application for a certificate that we were minded to award to the respondent its costs of and occasioned by the application. But questions were raised as to this Court's power to make such an order, so we adjourned the matter to enable counsel to research the point and to provide the court with the benefit of that research. In the event, we are grateful to counsel for their assistance.

2 It would appear clear enough that in a case in which the application is dismissed because it has no merit, there is in this Court no power to condemn an applicant in the costs of an application for leave under section 32.

3 As Mr Saw SC for the respondent correctly says, there is no inherent power in the court to award costs. If the power exists, it must be found in statute.

4 The power of this Court to grant a certificate, which might then trigger the grant by the Court of Final Appeal for leave to appeal in a criminal case, is implicit in section 32 of the Court of Final Appeal Ordinance which provides:

"(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.

(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done."

5 No power is granted by that Ordinance to this court to make any award of costs.

6 By section 52A of the High Court Ordinance "the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction ... shall be in the discretion of the Court...." There is no like provision in relation to the exercise of such a power in this Court's criminal division. In so far as Order 62 of the Rules of the High Court apply to criminal proceedings, the order is expressed to apply "under enactments relating to the costs of criminal proceedings to which this Order applies": see O.62 r.2(4). So we are left again to search the statutory provisions.

7 The power in this court to award costs against an unsuccessful applicant or appellant is housed in the Costs in Criminal Cases Ordinance, section 13; but the power is exercised only where this court is satisfied that an appeal is without merit, or that an application to this court for leave to appeal against conviction is without merit. It is perfectly clear that the leave to appeal to which this section applies is leave to this Court from a decision of a lower court. It does not embrace leave to the Court of Final Appeal and, in any event, under section 32 of the Court of Final Appeal Ordinance, applications for leave are made to that Court and the only application with which this Court is concerned is an application for a certificate. Clearly, therefore, section 13 of the Costs in Criminal Cases Ordinance does not empower this Court to award costs upon a failed application for leave for a certificate.

8 Our attention has been invited to section 17 of the Costs in Criminal Cases Ordinance which permits a court to award costs where in the course of criminal proceedings costs have been incurred as a result of "an unnecessary or improper act or omission by or on behalf" of a party to the proceedings. It is unnecessary to determine whether such circumstances might be invoked in the context of an application for a certificate under section 32, and it is unnecessary because the circumstances envisaged by section 17 is not what the present question is about. The question which we address for present purposes is whether in the ordinary case an unsuccessful application for a certificate may be the subject of a costs order, whereas section 17 addresses particular types of conduct which merit condemnation in costs, such as negligence or specific unreasonable conduct, or improper conduct. Further representations have been made that the section 17 power is directed at matters arising in the course of proceedings rather than in relation to the result of the proceedings, but that too is not necessary to address, for we are satisfied that the section is not directed at the situation with which we are presently concerned.

9 We conclude, therefore, that in the ordinary case of an application for a certificate under section 32 of the Court of Final Appeal Ordinance, which is unmeritorious and fails, this court at present has no power to award costs in favour of the respondent. That, it seems to us, is a lacuna which deserves some consideration, for it is within our experience that some applications are made which have no chance of success whatsoever; where, for example, it is patently obvious that there arises no issue of great and general importance or where, as in the present case, the judgment of this court has obviously been misunderstood. We fail to see why in such circumstances the respondent, on whose representation public funds are expended, should not in a proper case be the beneficiary of a costs award.