HKSAR v. CHUN WO CONSTRUCTION & ENGINEERING CO. LTD AND OTHERS

HCMA 134/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 134 OF 2003

(ON APPEAL FROM KTS 13059, 13060 & 13061 of 2002)

____________

____________

_______________

J U D G M E N T

_______________

1. These are three appeals heard together against an order made by a Magistrate awarding the Appellants fixed amounts of costs of $2,000.00, $3,000.00 and $4,000.00.

2. There was one incident which gave rise to the issue of summonses against each of the Appellants: the summonses all arose from the same single incident. In the due course, the matters were tried before the Magistrate. In respect of two of the summonses, the Magistrate found there was no prima facie case to answer: in respect of the third summons the Accused was acquitted at the end of the trial. The trial lasted some 3 1/2 days. Throughout the trial, the Appellants were represented by Mr Richard Wong of counsel.

3. At the conclusion of the trial, Mr Wong applied for an order that the Appellants' costs be paid. This was an application under s. 3 of the Costs in Criminal Cases Ordinance (Cap. 492). The Magistrate considered the application and exercised his discretion in favour of the Appellants, accepting that they were entitled to their costs. He set out in what he described as a "Ruling on application for costs", a clear, concise and correct summary of the principles which he was required to apply in arriving at his decision. This summary appears in paragraph 2 of the Ruling. He accepted that none of the Appellants had brought suspicion upon themselves nor had any Appellant lied to, obstructed or misled the investigating authorities. Applying those principles, it seems to me correctly, he decided that the Appellants were entitled to their costs.

4. At the time the application was made, it was made simply on the basis that the Appellants "be awarded costs". There was no agreement between the prosecution and the defence as to the quantum of those costs. When he made his initial order, the Magistrate obviously had regard to the provision in s. 3(2) of Cap. 492 which provides that "An order for costs shall not exceed $30,000 unless" there is either agreement between the defence and prosecution or the Magistrate, in the absence of any such agreement, orders that the costs be taxed.

5. He then made the order to which I referred earlier which resulted in the Appellants having an aggregate amount of $9,000.00 towards their costs. Mr Wong immediately asked the Magistrate to review his decision and to make an order that the costs be taxed. I have had the benefit of reading the transcript. The Magistrate in respect of that application said at p. 28:

"Having taken Mr Wong's words in court this morning, I review my decision but can see no basis for altering my orders awarded just now. Therefore, figures remain."

6. The problem, with respect to the Magistrate, seems to me to be that he misapprehended the provisions of s. 3(2), Cap. 492. In his ruling, which plainly was given at the time of review, he says at para. 5.

"Given the above situation the proper ruling is to allow the Defendant's applications. As to quantum, the maximum I can allow is $30,000."

He then does go on to say that he was taking all the relevant factors into account, including the total length and degree of complexity of the trial, and made his order for a total of $9,000.00. It seems to me that the Magistrate misread the provisions of s. 3(2) and had not properly considered whether, in the circumstances, this was a matter in which he should have ordered that the costs be taxed.

7. Plainly, he is right in his approach that absent either agreement between the prosecution and defence or absent an order that the costs be taxed, the award is limited to $30,000.00. There is nothing on the record to demonstrate to me that he applied his mind to the submissions of Mr Wong that he consider whether he ought to order the costs be taxed.

8. The principle as appears from s. 15 of Cap. 492 is that whilst costs should not be punitive, they should be awarded in such sum as is reasonably sufficient to compensate any party to proceedings wherein expenses are properly incurred in course of those proceedings. I do not think there is any doubt that $9,000.00 spread over the three Appellants for 31/2 days of trial is inadequate to reasonably compensate them.

9. I have been provided with a draft bill of costs this morning which I take it is put before me simply to show the type of figure that is likely to be charged in a matter of this nature and to highlight the disparity between reality and the amounts the Magistrate ordered.

10. In all the circumstances, it seems to me that this is a matter where the appeal should be allowed and that the proper order is one that the costs of the Appellants be taxed, including the costs of this appeal.