THE SECRETARY FOR JUSTICE v. CHAN CHEUNG CHOR

1998 HCAL No. 102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The facts

1. In July 1997, the Respondent was tried in the District Court on three charges of offering an advantage to a public servant, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance (Cap. 201). He was convicted on all charges, and sentenced to terms of imprisonment. He appealed against his convictions to the Court of Appeal. His appeal was allowed, the convictions were quashed, and a retrial was ordered.

2. The Respondent was retried in the District Court in June 1998. He faced the same three charges. On this occasion, he was acquitted on all of them. His counsel then applied for costs. Prosecuting counsel did not initially oppose that application. However, he soon realised that defence counsel was applying, not merely for the costs of the retrial, but also for the costs of the first trial and of the appeal. Prosecuting counsel opposed that application. The judge ordered the prosecution to pay the Respondent's costs of the retrial, but at the suggestion of both counsel he adjourned the remainder of the application to see if agreement could be reached.

3. No agreement could be reached, and the application for costs was re-listed on 2nd September 1998. Having heard argument on both sides, the judge awarded the Respondent his costs, not only of the retrial, but also of the first trial and of the appeal. The prosecution now applies for judicial review of that decision. Its case is that the judge did not have power to make that order for costs.

The District Court's powers to make orders for costs in criminal proceedings

4. It is well settled that the District Court does not have an inherent jurisdiction to make orders for costs in criminal proceedings. The District Court only has such powers to make orders for costs in criminal proceedings as are conferred upon it by statute: see Attorney General v. A Deputy District Court Judge [1991] 2 HKLR 507. Costs in criminal cases are now governed by the Costs in Criminal Cases Ordinance (Cap. 492). However, that 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.

5. There were two relevant statutory provisions at the date of the alleged offences. First, section 73A of the Criminal Procedure Ordinance (Cap. 221) provided, so far as is material:

"(1) Where after trial in the court a person is acquitted, the court may order the payment out of the public revenue of the costs of the defence, including the costs of any proceedings before a magistrate.

(2) The costs payable to any person under this section shall be such sums as appear to the court reasonably sufficient to compensate that person for any expenses properly incurred by him in or about the defence.

(4) In this section, 'court' means the High Court and the District Court."

Secondly, section 28 of the Prevention of Bribery Ordinance provided:

"Where a person is acquitted after trial before the High Court or the District Court for an offence under Part II, the court may award costs to that person, such costs to be taxed and paid out of the general revenue."

Section 4(1)(b) of the Prevention of Bribery Ordinance appears in Part II of the Ordinance. The power which the judge was purporting to exercise was that conferred by section 73A.

The proper construction of section 73A

6. The costs which may be awarded by the District Court under section 73A are "the costs of the defence": see section 73A(1). A similar phrase is used in section 73A(2): "expenses properly incurred ... in or about the defence". Mr. John McNamara for the Respondent contends that there is no warrant for construing these provisions restrictively. The costs incurred by a defendant in defending himself against the charges he faces includes all the costs incurred by him. Therefore, the words "the costs of the defence" should be construed as including the costs incurred by him prior to the retrial. On the other hand, Mr. Darryl Saw S.C. for the prosecution contends that these provisions should be construed as "the costs of the defence in the actual trial in which he was acquitted".

7. I wish to deal first with two points taken in the Notice of Application which were not developed by Mr. Saw in argument. First, it was said that when the legislature intended to deal with the costs of the defence at some other stage in the course of the proceedings, section 73A made that clear. Thus, section 73A(1) expressly provided that it was to include the costs of any proceedings before a magistrate. Secondly, reliance was placed on the definition of "court" in section 73A(4), which does not include the Court of Appeal.

8. I do not think that the reference in section 73A(1) to the costs including the costs of any proceedings before a magistrate is significant. The reference to proceedings before a magistrate does not signify that other costs incurred in the course of the proceedings should be excluded. It simply signifies, for the avoidance of doubt, that the costs of any proceedings before a magistrate should be included. Nor is the debate assisted by the definition of "court" in section 73A(4). The effect of the definition of "court" in section 73A(4) is to limit the jurisdiction to award costs under section 73A to the Court of First Instance and to the District Court. It does not purport to limit the costs to be awarded to costs incurred only in the Court of First Instance or the District Court.

9. However, what persuades me that Mr. Saw's construction of section 73A is correct is the submission which he has developed this morning - namely, that his construction of section 73A is consistent with the general principle that a court can only award costs in respect of the proceedings heard by it. Clear statutory language is needed if that principle is to be departed from. The reason is simple: the court may not have the material on which to make an informed judgment as to whether to award costs incurred at an earlier stage of the proceedings heard by another court.

10. That construction of section 73A does not result in any injustice to a defendant who is ordered to undergo a retrial following the quashing of his conviction by the Court of Appeal. He can apply to the Court of Appeal for the costs of the first trial and of the appeal: see sections 83XX(2) and 83XX(4) of the Criminal Procedure Ordinance. I appreciate that at one stage section 83XX(3)(a) of the Criminal Procedure Ordinance prevented a defendant whose conviction had been quashed from applying for his costs under section 83XX(2) if a retrial was ordered. But section 83XX(3)(a) was repealed in consequence of the finding in R. v. Man Wai Keung (No. 2) [1992] 2 HKCLR 207 that it was inconsistent with the Bill of Rights. Although the whole of section 83XX (and section 73A for that matter) was repealed by section 23 of the Costs in Criminal Cases Ordinance, section 83XX continues to apply to the present case in the light of section 25 of the Costs in Criminal Cases Ordinance, to which I have already referred. All that is conceded by Mr. McNamara.

11. I appreciate that the Respondent did not in fact apply to the Court of Appeal for his costs, but that does not affect the position. He could have done, and it was the fact that he could have made such an application which avoids the injustice which Mr. Saw's construction of section 73A is said to create. There is, of course, nothing to prevent the Respondent from applying to the Court of Appeal now for the costs of the first trial and of the appeal. It is true that the Court of Appeal is reluctant to hear applications for costs made subsequent to the determination of the appeal (see R. v. Kwok Moon Yan [1989] 2 HKLR 396 at p.402D), but it is not precluded from doing so (see R. v. Chan Kwong Yik (CA 179/95)).

12. I am reinforced in my view of the proper construction of section 73A by the fact that the Court of Appeal is in a far better position to determine the costs of the first trial and the appeal than the judge at the re-trial. The members of the Court of Appeal will know what went wrong in the first trial, whether the defendant had brought the original conviction upon himself, and therefore whether the appeal in which the retrial was ordered was the consequence of some culpability on the part of the defendant. If the Court of Appeal thinks that the costs of the first trial and the successful appeal should depend on whether the defendant is convicted or acquitted in the retrial, it can adjourn the application until after the retrial.

13. Accordingly, I have concluded that the judge did not have the power under section 73A to make the order which he did relating to the costs of the first trial and of the appeal.

The construction of section 28

14. Although the judge did not purport to exercise the power conferred on him by section 28, this application for judicial review must nevertheless be dismissed if (a) the judge had the power under section 28 to make the order which he did, and (b) he would have exercised that power in the same way if he had appreciated that he had not had the power under section 73A to make the order which he did. However, section 28 does not attempt to identify what costs may be awarded to an acquitted defendant. Since the general principle is that the court can only award costs in respect of the proceedings heard by it, it follows that the judge did not have the power under section 28 either to make the order which he did.

Conclusion

15. For these reasons, there must be an order of certiorari quashing that part of the order for costs made by the judge on 2nd September 1998 whereby he ordered the payment to the Respondent of the costs incurred by him in the first trial and in the Court of Appeal to be paid out of the public revenue. For the avoidance of doubt, I should add that that part of the judge's order which ordered that the Respondent's costs of the proceedings before the magistrate be paid out of the public revenue stands.