HKSAR v. TSANG WAI LUN WAYLAND AND ANOTHER

CACC 96/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 2010

(ON APPEAL FROM DCCC NO. 24 OF 2008)

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Hon Stock VP (giving the Ruling of the Court):

1.  In November 2012 we handed down judgment in this case, which was an application for leave to appeal by five applicants. In the result we granted leave to appeal, treated the hearing of the applications as the appeal, quashed the conviction in relation to charge one (on a straightforward very short point that was not contested and therefore not the subject of argument) but dismissed the appeals in relation to the other convictions.

2.  In December 2012 we made certain determinations in connection with the sentences imposed in relation to the first and second appellants.

3.  The respondent subsequently applied for the costs of the appeal as against the first and second appellants.  The respondent points out that with the exception of the successful ground in relation to one of the charges (the short point that it is not permissible to convict spouses of conspiring with each other and no other person) the remaining grounds were all held to be without merit. It is estimated, according to the respondent, that at least 50% of its time was devoted to addressing the grounds of appeal and skeleton submissions of the first and second applicants and accordingly seeks 50% of the total prosecution costs incurred in the appeal against those accounts.

4.  The application is opposed first on the basis that the discretion to award costs should be exercised bearing in mind that the effect of condemning appellants in costs is to discourage the right of appellate review.  We are not impressed with this as a ground.  It is a discretion conferred by statute and is to be exercised in light of all the circumstances of the case.  

5.  The application is then opposed on the basis that where an appeal is partially successful the discretion to award costs does not, on a correct construction of the statutory provision, arise.  Section 13 of the Costs in Criminal Cases Ordinance Cap 492 states:

“Where a defendant unsuccessfully-

(a) appeals to a judge from any conviction, order or determination of a magistrate; or

(b) appeals to the Court of Appeal against –

(i) his conviction of an offence or any other final verdict made in respect of him; or

(ii) sentence; or

(c) applies to the Court of Appeal for leave to appeal against any of the matters referred to in paragraph (a),

and the judge or Court of Appeal is satisfied that the appeal or the application, as the case may be, is or was without merit, the judge or the Court of Appeal may order that costs be awarded to the prosecutor.”

6.  We do not agree with the construction advanced by counsel for the appellants.  The reference in subsection (b) is to “conviction for an offence” and in this case there were convictions for four separate offences against which the appellate proceedings were launched.  There is nothing ambiguous in the statutory provision which clearly contemplates power to award costs where an appeal is unsuccessful in relation to one or more convictions, even though successful against others.

7.  Finally it is contended that the application for 50% of the respondent’s costs is excessive since many of the grounds which attracted strong criticism from this court were not the subject of oral argument.  That is not to suggest, we note, that they were abandoned and there can be no question but that the respondent was put to the trouble of dealing with them.

8.  There is one point which has not been the subject of submissions, namely, the ambit of the phrase “without merit” in the context of section 13.  The potential relevance of this in the present case is that, in the submissions on behalf of the respondent, reference is made to one of the grounds of appeal argued on behalf of all appellants, including the first and second, namely the proper construction of section 25 of the Organized and Serious Crimes Ordinance, Cap 445 and the application of that provision to the facts of the case.  We dismissed that ground of appeal but we note in this regard that the respondent’s submissions as to costs highlight adverse comments made by this Court in its judgment about certain aspects of the appeals of the first and second appellants in relation to charge 4 but no reference to the Court’s analysis of the construction argument.  Further, we note that no application is made for costs of the appeal as against the remaining appellants who faced only charge 4.  It may be, we know not, that this is in recognition of the fact that the section 25 construction point was considered by the respondent to be reasonably arguable.  It is true that the phrase in section 13 of Cap 492 is “without merit” rather than “not reasonably arguable” but in the absence of further argument – which, given the Court’s delay in dealing with this application for costs, we will not seek – we will discount costs occasioned by the construction point.

9.  We think it appropriate in the circumstances that the first and second appellants should bear 40% of the costs of the appeal incurred by the respondent, to be taxed if not agreed, and we order accordingly.  This order does not include costs of the sentencing issue addressed in December 2012, since that was an issue raised of the Court’s own motion, as to which no order is made.

10.  The Court apologises for the long delay in dealing with this application.