HKSAR v. CANAVERAL, JOEMAR ROBLAS AND ANOTHER

HCMA271/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 271 OF 2008

(ON APPEAL FROM KCCC 6200 OF 2007)

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J U D G M E N T

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1.  This is an appeal against an order for costs that was made in favour of the two Appellants in the sum of $10,000 when a charge they both faced of the possession of ammunition was withdrawn at Kowloon City Magistrates’ Court on 18 February of this year.

2.  It all came about in this way.  On 6 October, the two Appellants were arrested.  They appeared in the Magistrates’ Court on 8 October, where the prosecution applied for a remand in custody, objecting to bail, until 5 December.  I have a transcript of what occurred then.  The allegation against the 1st Appellant was that he had been found in possession, on his person, of 70 grammes of “Ice” and a key to a room in which a further 70 grammes of “Ice” were found.  He shared the room with the 2nd Appellant and in the room there was, so the prosecution said, a loaded gun and a quantity of ammunition.  Not surprisingly, in those circumstances, the bail application that was made failed and the remand in custody to 5 December took place.

3.  The 1st Appellant had denied to the police that he possessed any dangerous drugs and was silent in the face of the allegation about the ammunition, saying the gun was not his. The 2nd Appellant said she knew nothing about the gun or the cartridges but that the alleged “Ice” was some harmless talcum powder.

4.  By 25 October, not long after this event, the Government Chemist had analysed the alleged “Ice” and found that indeed it was an innocent talcum powder.  It was not “Ice.”  Also, by 12 October, the loaded gun had been found to be not even an imitation but a toy with some toy cartridges in it.  There were a number of cartridges found, some of which did not meet the definition of being ammunition within the meaning of the Firearms and Ammunition Ordinance but there were some live Rimfire blank cartridges which were used in the operation of industrial fixing tools found there and they did meet the definition of ammunition.

5.  The Appellants instructed solicitors and those solicitors, on 20 November, received the prosecution bundle.  They then, on that date, were made aware that the “Ice” was no such thing, and neither was the loaded revolver anything other than a toy.  It is worthy of remark here that the prosecution, with that knowledge and having secured the remand in custody, had taken no steps to inform the magistrate who had made that remand in custody of such a dramatic change of circumstance and there had been a delay in informing the defence of nearly four weeks.

6.  It is easy to sit here, perhaps, with the benefit of hindsight and criticise the actions people did or did not take at the time.  But I would have thought that any criminal lawyers instructed on behalf of these Appellants, learning that the “Ice” was not “Ice”, learning that the loaded gun was just a mere toy, would on 21 November have got the case back before the Magistrates’ Court and made an application for bail.  No such thing was done.  A letter was written by counsel who had been instructed, dated 29 November, addressed to the police, asking them to withdraw the charge.  Meanwhile, the Appellants remained in custody and they remained so until 5 December.

7.  On 2 December a fax had been sent by the police, saying that the allegation of trafficking in “Ice” would not be pursued; that there would be an amended charge of the possession of ammunition but that they would not be opposing bail.  However, on 29 November a brief had been delivered to counsel to seek bail.  The brief fee on that, and I have a full bill of costs before me in this case, was $38,000.  Bail was granted.  Time went by.  There was a remand until 14 February.  Counsel had a conference with the Appellants, who were now facing the charge of possession of ammunition.  In the circumstance, that seems to me to be a reasonable thing to have done.

8.  On 14 February, four days before the adjourned hearing, a fax from the prosecution told the defence that the charge of possessing ammunition would be withdrawn.  The next day, a brief was delivered to counsel, marked this time $25,000, to appear on 18 February in order to represent the Appellants when the case was to be withdrawn and to make an application for costs.

9.  On the 18th, the case was called on early in the morning.  It was a very busy Court 1 at the Magistracy and there was some discussion about whether the matter should be adjourned, because counsel had commitments in the District Court that day. What in fact occurred was that the case was called on shortly before 4.30 in the afternoon, counsel having gone away to the District Court and returned after lunch.  The solicitor who was instructing him, remained there the whole of the day, charging, incidentally, by the rate per hour something approaching $25,000.

10.  There was, frankly, a misunderstanding between the Bench and the Bar as to whether or not the application was to cover the costs of that day or just to be the one appearance on 5 December.  What counsel had meant to indicate was that if the matter had to be adjourned to a further day, he would not claim for the instant day.  That is quite apparent from the transcript. 

11.  In the end, the magistrate, after a long day, was faced with competing claims because the prosecution objected to paying the costs claiming that the Appellants had brought the prosecution upon themselves. As is conceded today before me,  that was unrealistic. The magistrate, doing the best he could in the circumstances, decided that $10,000 was an adequate figure for the defence costs . 

12.  The charges here were extremely serious.  For the possession of 140 grammes of “Ice” the starting point of imprisonment after trial is in double figure; likewise, for the possession of arms and ammunition, especially a loaded revolver.  It is quite reasonable that people in those circumstances consult solicitors, who consult a senior junior, and costs are bound to be run-up when advice is given.  It cannot be that $10,000 would be an adequate sum to meet those expenses.

13.  There is no opposition to the fact that an order has to be made in favour of the Appellants and that the Respondents must pay some costs.  The dispute is to how much.  The amount claimed on the detailed bill of costs amounts to in excess of $160,000, $73,000 being counsel’s fees and $87,000 being the solicitors’ profits costs.

14.  I have never taxed a bill in my life and I lack the expertise to do it.  I do not know the conventions that are adopted and the like, but there are items that catch my eye here, such as the solicitor doing 2 hours of research into drug trafficking and the like, which would make me raise an eyebrow.  The right person to deal with this is a taxing Master and that is the order I am going to make - that the Appellant have their costs, to be taxed if not agreed and that will apply to the proceedings here and below.

15.  What I think it right to point out, though, for the possible assistance of the taxing Master is that the size of the brief fee on 29 November would appear very much on the generous side and it may be, by that stage when the defence knew that the “Ice” was not “Ice” and the loaded revolver was a mere toy, that not only were they going to win but they would win with their costs.  It may be that the size of that brief fee could have reflected that.  It is also right that the brief was delivered on 15 February, after the information had been transmitted on the day before that the charge would be withdrawn without - and this is upon inquiry here from me today - without any approach from the defence solicitors to see whether costs could be agreed, or agreed to be taxed in the absence of agreement as to the sum, without the necessity of briefing counsel.  On the other hand, if they had made that inquiry, given the attitude of the court prosecutor on the day, it may have merely resulted in a refusal.  Whether or not it was reasonable for a solicitor to remain all day at the Magistrates’ Court on 18 February, with the meter running to the tune of $25,000, is a matter for which the taxing Master would have experience that I lack.

16.  I have inquired, though it is not strictly necessary for the purpose of the disposal of this appeal, as to whether or not the Appellants have paid their solicitors.  I am told they have.  They have paid the bill in full.  It is not for me to involve myself in the relationship between themselves and their solicitors in respect of costs, though it does seem to me right that they be made aware of what I have said today.  Let me put it like this.  It seems to me that they may have a legitimate grievance as no bail application was made between 20 November and 5 December.  That resulted in them staying in custody significantly longer than necessary  when a timely bail application earlier would have been highly likely to have secured their release on bail. 

17.  As regards the costs of this hearing before me, the respondents have sought to resist the application for costs.  They did so on the basis, in effect, that no detailed bill was put before the magistrate on 18 February and the nature of the application then made was not sufficient to help the magistrate get the figure right.  In fact, the transcript shows that counsel was then asking for in excess of $30,000 costs and was asking that the matter be taxed in the absence of agreement. It was late in the day and the whole history and exactly what had happened was not put before the magistrate, but that was no real fault of either side in the circumstances. 

18.  In my judgment, today, costs must follow the event.

19.  It is a matter of grave disquiet that the prosecution sat on the information which would have let these Appellants out on bail earlier.  It should not happen again.  In circumstances like this, the police are under a duty not only to disclose the information immediately to the defence but also to let the court prosecutor and/or the Department of Justice know what has occurred.

20.  The history of the case that I have outlined is really rather a sorry one.  The order I make, for the avoidance of any doubt, is the order for costs of $10,000 be set aside and in its place there be an order that the

Appellants have their costs here and below, to be taxed if not agreed.

Representations: