HKSAR v. LI CHUN TING

HCMA 311/2007

[2018] HKCFI 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 311 OF 2007

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D E C I S I O N

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The review

1.  On 4 August 2017, I taxed the bill of the Department of Justice (“DOJ”) for a criminal appeal and I had, on the same day, delivered a reasoned Decision in writing (“Decision”).

2.  This application for review of my Decision is made by DOJ, under sections 7 and 8 of Cap. 492A. Section 8 provides that the procedures for the application are the same as those provided under Order 62, rule 33 of the Rules of the High Court.

3.  DOJ is represented by Ms. Anna YK Lai, SC, Deputy Director of Public Prosecutions and Mr. Jonathan Lin, Senior Public Prosecutor.  The paying party is present in person.

4.  The issues for review are as follows:

(a)   “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.”: §11 lines R-T of the Decision;

(b)   “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.”: §15(a) of the Decision; and

(c)   “… 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.”: §11 lines L-N of the Decision.

5.  DOJ has made it clear that the purpose of this review is to clarify the above directions given in the Decision so as to facilitate the drafting of the bills for criminal matters.  It will not ask for a variation of the amount as taxed and also it will not ask for costs against the paying party whatever the result of this Court today.  The paying party is content with DOJ’s proposals.

Issues arising from 5. a. and b.

6.  In support of issues a and b, DOJ has submitted that criminal cases should be taxed on the basis of “reasonably sufficient for expenses properly incurred”, relying upon HKSAR v Wong Tsz Yuk [2010] 1 HKC 464 by Poon J (as he then was) at §41 and Vivien Fan v HKSAR (unreported, FACC 6-12 of 2010, at §10).

7.  DOJ therefore submits that it is erroneous to apply the party and party charges in criminal cases, and no question of adherence arises.[1]

8.  I have no dispute with the above authorities.

9.  I also agree that for criminal taxation, the common fund basis should apply.  See the Taxation Guide at 62/App/98 of the White Book 2018.  But the hourly rates in the Law Society’s Circular entitled “High Court Taxation – Consolidation Circular – Updated April 2008” (“the agreed hourly rates”) must be adopted for reference.  This is the only table of solicitors’ hourly rates for reference.  The different bases for taxation only affect the factors to be taken into account for the amounts to be allowed. See Re Wing Fai Construction Co Ltd (Costs: Taxation) (2012) 15 HKCFAR 657, 671-673) at §37 where the learned PJ Chan said:

“… In my view, the Law Society’s hourly rates should be applied with flexibility bearing in mind the appropriate approaches to be adopted in different types of taxation.”

10.  It is on this basis that I directed the drafter of the criminal bills that when they draft the bills, they must adhere to the hourly rates set out in the Law Society’s Circular.  There is simply no other rate for solicitors’ charge that this Court can refer to for taxation of bills, be they criminal or civil matters.  If the drafter adopts other rates without explanation in the bills, I will not understand the charges.  I will therefore raise requisitions on them.

11.  As I said in my Decision, DOJ may ask for higher rates of charge for taxation if there are reasons for the request.  See §15(b) of the Decision.

12.  DOJ has to, in the bill, set out such request and state the reasons for the items on which it asks for higher rate of charge.  The fact that government counsel has to do the work of an instructing solicitor and that of an advocate in court is one of the factors that the court has to consider.  Whether or not the court will accept such reasons or explanations and what the appropriate rates of charge should be is the court’s discretion.

13.  The costs of government lawyers who are treated as barristers and solicitors for the purpose of fees and costs are to be taxed on the same basis as private practitioners.  Ling Yuk Sing v The Secretary for the Civil Service & Another [2010] 3 HKLRD 722 at §§16-17.  There is no dispute from DoJ.  DoJ also confirms that the salary of a government counsel will not be affected by the work the government counsel does, whether being a solicitor or a counsel, or doing civil or criminal work.

14.  I suppose this has clarified the direction in my Decision on the drafting of the bills.

Issue from 5.c.

15.  In respect of issue c, DOJ relies upon the Schedules of the Legal Aid in Criminal Case Rules, Cap. 221D, rule 21(8)(b), and Part 2 of the same Ordinance, in which the rate of hourly pay for instructing solicitor is lower than that of a solicitor with higher rights of audience.

16.  I do not find this argument attractive. A solicitor with higher rights of audience under rule 21(8)(b)(ia) refers to those solicitors who have attained higher right of audience.  They usually have higher seniority.  Ms. Lam’s post-qualification is only 3 years, which is by no means comparable to a solicitor with higher rights of audience. She can charge for time spent on the work as a solicitor and for time working as counsel, which I did not challenge.  I also agree to take this factor into consideration when considering her hourly rate of charge.  But her rate of hourly charge must be reasonable and the burden is, under the common fund basis, on DOJ.

17.  DOJ also relies upon the case of Building Authority v Business Rights Ltd [1999] 3 HKC 247 by Burrell J (as he then was).  In this judgment, the learned judge acknowledged the professional skills of the public prosecutors and they should be paid accordingly. This is no doubt correct.  The fact that they should be paid at the level of a partner in a solicitors’ firm has been discussed in my previous Decision of HKSAR v Ma Sin Chi & Others [2017] 2 HKLRD 889 at §§12-17.  I do not accept a junior government counsel of three years’ experience can justifiably command the same hourly charge of a partner of a law firm of 10 years or more.  This simply defies common sense.  The indemnity principle of costs equally applies to government counsel.  I shall not say any more in this Decision.

18.  DOJ submits that the court should not take the agreed hourly rates under the protocol as the strait jacket.  I agree.  I have said in my Decision that the receiving party was at liberty to make submissions to the taxing authority for a higher rate of hourly charge.

Conclusion

19.  I have clarified the three issues raised by DOJ.  I am grateful for Senior Counsel A. Lai’s assistance in this hearing wherein we have exchanged our views on the issues and we understand our situations and stance.  I hope this will assist DOJ in drafting the bills.

20.  As to the costs of this application, as agreed, there will be no order as to costs.