HKSAR v. LI CHUN TING

HCMA 311/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 311 OF 2007

(ON APPEAL FROM ESCC 4571 OF 2006)

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D E C I S I O N

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Introduction

1.  In the course of taxing the bills for criminal appeals issued by the Department of Justice (“DoJ”) against the defendants in the criminal appeal cases, I have discovered the following features:

(a) The bills were usually uncontested by the defendants;

(b) The defendants did not even put in any grounds of objection;

(c) DoJ usually applied for ex parte taxation of the bills on paper; and

(d) The bills were issued without much information as to the nature of the charge, what happened at the trial or appeal, any particular issues of novel legal principles that required special legal research or legal analysis or any reasons that justified the hourly charge of the government counsel and other staff.

2.  Without the grounds of objection from the defendants, this Court relied on the integrity of the drafter of the bills to apply just and common sense in drafting the bills, taking into account of the fundamental principles of costs.  At the initial stage, this Court had approved a number of bills without raising any requisitions.  This Court’s reliance upon the integrity of the drafter of the bills has now become the ground to justify the requisitions that this Court finds necessary to raise because of some blatant excessive charges in the bills as will be seen below.

3.  I had, in my previous Decision dated 14 March 2017, raised the requisitions in relation to some questionable high charges for government counsel or senior government counsel.  I shall set out the relevant part of the factual background here:

(a) In the course of taxing the bills, the Registrar found that senior government counsel and government counsel were charging $6,000 or $5,000 per hour;

(b) The Registrar applied the costs for civil taxation on the hourly charges of the legal profession;

(c) For the time being, the applicable rate of hourly charge, as currently applied by the other courts for taxation for civil litigation is $4,000 per hour for a solicitor over 10 years post qualification experience, subject to adjustment by the court on individual case for special reasons;

(d) Since there is no information as to the complexity of the matter and the seniority of the government counsel or senior government counsel, the Registrar had raised requisitions with DoJ, asking for information for the seniority of the government counsel;

(e) DoJ had agreed to adopt $4,000 as the highest level of costs for some of the other bills;

(f) When the Registrar raised the same requisitions for other bills of similar situations, DoJ asked for a hearing on this issue.

4.  Since last hearing, Department of Justice has provided the seniority of the government counsel handling the matters.

The hearing today

5.  Closer scrutiny has been given to the bills of costs.  On this occasion, the charge of Miss Lam, government counsel, who was qualified in 2014, charged $4,000 per hour for her professional service whereas senior government counsel Fu, who was qualified in 2008, charged $3,500.  The charge for the litigation clerk was $1,600 per hour.

6.  According to the hourly rates allowed for solicitors and their staff on party and party taxation in the High Court to date (“the standard rates”), the hourly rate of charge for Miss Lam should be between $2,000 to $2,500 and the litigation clerk between $800 to $1,000.

7.  The charges for Miss Lam and the litigation clerk are 60% over the standard rates.

8.  Apart from this bill, I discovered that DoJ had been drafting the other criminal bills using the same rates.  For the sake of consistency and better administration of our Registry, I had asked the drafter of the bill to appear before myself to explain why this bill was not drafted in accordance with the standard rates.

The Public Prosecutor’s explanations

9.  Mr. Cliff Ip, Public Prosecutor on behalf of DoJ appears before me today.  He had submitted a written submission to me two days before this hearing wherein he set out the following reasons:

(a) Part D of the Law Society’s Circular “High Court Taxation – Consolidated Circular – Updated April 2008” in which the Law Society advised its members that the Masters would pay attention to the level at which work has been done, which means that where the work should be done by person qualified to do, the costs would be allowed accordingly.

(b) Where the criminal case is represented by solicitor-advocate (instead of barrister), this Division has agreed to a “higher-than-normal” hourly rate for those solicitors-advocates as he is doing both the solicitor’s and a barrister’s work.  It is not entirely clear the parties of the so-called agreement to pay higher rate.  I assume that DoJ agreed to pay higher rates to the solicitor-advocate when it had to pay the costs to the successful appellant.  This has nothing to do with taxation by the taxing masters.

(c) Consistently, when solicitors of this Division act as advocates, they also do work of both barrister and solicitors and this Division considers that it is entitled to charge an hourly rate higher than “the norm” stated in the Circular.

(d) The costs are not paid to the individual prosecutors, nor are they appraised by such rates.  All such costs go to the public revenue in respect of work and human resources etc. of this Division financed by the public revenue.

(e) For this case, Miss Lam was doing the work of a solicitor as well as a barrister; as such she is entitled to a higher rate of charge.

(f) This Court had, in the past, approved other bills with higher rates of charges.

The general principles applicable to taxation of costs in criminal proceedings

10.  It is high time to remind the drafter of the criminal bills of the general principles applicable to taxation of costs in criminal proceedings as set out the Decision of Master De Souza in HKSAR v Yip Kim Po [2013] 2 HKLRD 459 at §§8-11:

“ 8. The award of costs in criminal proceedings is regulated by the Costs in Criminal Cases Ordinance, Cap. 492. S.15(a) thereof stipulates:

“the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of these proceedings, including any proceedings preliminary or incidental thereto;” (italics mine)

9. Rule 7 of the Costs in Criminal Cases Rules further provides that:

“ (1) The taxing authority must consider the claim, any further particulars, information or documents supplied by the claimant under rule 6 and any representation by any interested party and must allow such costs in respect of –

(a) such work as appears to the taxing authority to have been actually and reasonably done; and

(b) such disbursements as appear[ed] to the taxing authority to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate the claimant for any expenses properly incurred by the claimant in the proceedings.

(2) In taxing costs under subrule (1) the taxing authority must take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.

(3) For the purposes of this rule, there must be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the taxing authority may have as to whether the costs were actually and reasonably incurred or were reasonably sufficient in amount must be resolved against the claimant. (emphasis supplied)

10. As to whether a particular set of costs has been properly or reasonably incurred, Sachs J pertinently observed in Francis v Francis and Dickson [1955] 3 All ER 836 at 840:

“When considering whether or not an item in a bill is ‘proper’ – the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what in the light of his then knowledge is reasonable in the interest of his lay client … the lay client … should be deemed a man of means adequate to bear the expense of the litigation out of his own pocket – and by, ‘adequate’ I mean neither ‘barely adequate’ nor ‘super-abundant’.”

11.  Any costs taxed or agreed in present circumstances will inevitably be met by the public purse.  The timely reminder of Lord Denning in Storer v Wright [1981] 2 WLR 208 at 212 in legal aid taxation is nonetheless apt.  He stated:

“Seeing that there is no-one to oppose, it seems to me that, on a legal aid taxation, it is the duty of the taxing officer to bear in mind the public interest. He should himself disallow any item which is unreasonable in amount or which is unreasonably incurred. In short, whenever it is too high, he must tax down. Otherwise the legal aid system could be much abused by solicitors and counsel.”

The Court’s views of the explanations

11.  As to the explanations given by the Public Prosecutor for this hearing, suffice it to say, it is a misconception that a solicitor who will do the work of a solicitor and that of a barrister should receive higher rate of charges as this is not found in any of the authorities or in our statutes.  The taxing master is not concerned with, let alone bound by, any agreement that may be reached between DoJ and any other parties.  The master, for the purpose of taxation, will only apply the relevant statutory provisions under the law and the protocol reached between the Judiciary and The Law Society.  The hourly rates for party and party charges are being reviewed by a special committee approved by the Chief Justice. Before the hourly rates for party and party charges have been fixed by the special committee, the standing rates as the one in July 1997 to date should apply.

12.  The standard rates are subject to variation by the taxing master on the merits of individual case.  DoJ can apply to the Registrar for fixing the hourly rates for a specific case, which it considers to justify separate and special consideration, setting out all the relevant materials and information as may be required for the assessment of the rates of costs as provided under the general principles of taxation in criminal proceedings above.

13.  As to the past approvals of the criminal bills of higher rates, they might be due to the oversight of the Registrar or taxing master.  They are not binding precedents for any other taxations.

14.  To justify random charging of costs against the defendants, who do not dispute the bills by saying that the money does not go to the government counsel nor would it appraise the prosecuting counsel will not assist me in the taxation of the bills.  I agree that the money will go to the public revenue. But it does not exonerate the drafter of the bills from his duty of properly drafting the taxation bills in accordance with the statutory provisions and trite practice.  Whilst this will not benefit the Public Prosecutor personally, it will not do justice to the defendant who has to foot the bill.  This is public interest that this Court has the duty to protect.

Directions for future criminal bills

15.  I shall now make the following directions for the drafter of the criminal bills:

(a) For usual bills of criminal appeals, the standard rates for government counsel and the staff in accordance with the July 1997 table should apply and be strictly adhered to;

(b) For unusual cases where the drafter considers that higher rates of charges other than the standard rates should apply, application should be made to the Registrar, in which he should set out the nature of the case and complexities involved and other reasons for the higher rates of charges.  The application will be dealt with on paper unless the Registrar directs that assistance is required for the drafter to appear him for explanation;

(c) The staff of the Registry shall see that the criminal bills comply with the above directions and may raise requisitions on them.  Absent explanation from DoJ, the criminal bills cannot be taxed and the matter will be referred to the Registrar for directions.

16.  This bill concerns an appeal against conviction of a charge of contravention of Trading Descriptions Ordinance in forging trade mark.  Although it says that the defendant had raised the facts of the case for the appellate court, I do not agree that this is a difficult issue for the appellate court.  This is trite law.[1]  The bill has not demonstrated any complexity in the matter.  As I have rejected the explanations from the Public Prosecutor, the standard rates shall apply to this bill. The bill will be taxed accordingly.

17.  There shall be no costs for this hearing today.