THE QUEEN v. MAK YUET-HANG

Headnote

Costs - Court of Appeal's jurisdiction to award - when Court sitting in civil or criminal Proceedings - S. 52A(1) of the Supreme Court Ordinance.

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J U D G M E N T

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Hon. Yang, C.J.:

1. On the 16th June 1988 Mak Yuet-hang's ("Mak's") application for leave to appeal came before us. In her application she complained that she had been wrongly refused costs by the Deputy District Judge upon her acquittal. The Crown did not resist the appeal. The question of our jurisdiction to award costs was not discussed, nor was our attention drawn to the relevant statutory provisions or authorities. In the circumstances Mak's appeal was allowed, and costs were awarded in her favour.

2. On the 18th August 1988, another division of the Court of Appeal, in The Queen v Wong Hing-yuk (1989) HRLR, 251, held (at p. 254) that our decision was per incuriam.

3. On the 11th March this year the Attorney General applied to have the matter of our order for costs relisted for rehearing bore us.

4. On the 27th June, when the Attorney General's application came before us, we indicated that having regard to the circumstances in which our order for costs had been made, the Crown might wish to reconsider their application even if they were entitled to have the order for costs set aside as a matter of strict law. Upon reflection, the Crown withdrew the application. We accordingly dismissed it. Mak's counsel then asked for costs incidental to this application, at the same time reserving his position that it was the decision in The Queen v Wong Hing-yuk that was per incuriam, and our order for costs made on 16th June last year had been correctly made.

5. The Crown left it to us to decide on the application for costs made by Mak's counsel, but enquired about the basis upon which this Court exercises its jurisdiction to award costs.

6. It seems to us that the true issue here is whether we are sitting in our civil or criminal jurisdiction. If the former, we may award costs; if the latter, we may not.

7. Five points are advanced in support of Mak's application for costs incurred in the Crown's application for relisting and rehearing.

8. First, that this Court has the inherent jurisdiction to award costs on the basis that costs are to follow the event. It is argued that the Crown, by their application for relisting and rehearing, have submitted themselves to this Court's inherent jurisdiction. In the circumstances, it matters not whether the original proceedings were criminal or civil in nature, this Court has a separate and extraordinary jurisdiction, quite divorced from the original proceedings, to award costs to the successful party, namely Mak Yuet-hang.

9. Secondly, by virtue of S. 52A(1) of the Supreme Court ordinance, which is similar to S. 51(1) of the Supreme Court Act 1981 of England, this Court may properly order the costs asked for. S. 52A(1) provides:

"Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the High Court, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid."

10. Thirdly, following the practice in England (Ex parte Osman (1988) 3 All E.R. 173), there is a similar practice in the Hong Kong courts to award costs against the Crown.

11. Fourthly, this Court is entitled to assume jurisdiction to award costs when the Crown have chosen not to argue against costs. Counsel for Mak relies on a dictum in the Government of U.S.A. v Bowe (The Times Law Reports, 13th September 1989), where Lord Lowry, sitting in the House of Lords, said, in the penultimate paragraph of his judgment: "The U.S. Government having expressly not argued against jurisdiction, their Lordships would assume, without deciding, that the Court of Appeal could properly adjudicate."

12. Fifthly, estoppel. It is argued that the ground for the Crown's application for relisting, and rehearing is that because it was a criminal cause or matter we were wrong in awarding costs to Mak in June last year. Having abandoned the application, the Crown have also abandoned the ground on which their application was based. They are therefore estopped from arguing that Mak is not entitled to costs for this application because it is a criminal cause or matter.

13. It is submitted on Mak's behalf that these five points, whether taken cumulatively or seriatim, support an order for costs in her favour in respect of the Crown's application for relisting and rehearing.

14. It will be convenient to start with counsel's second point. The clear wording of S. .52A(l)"(supra) permits the Court of Appeal to award costs to proceedings in its civil jurisdiction only. And S. 52A(3) clearly stipulates that sub-section (1) does not alter the practice in any criminal cause or matter. It is suggested that Ord. 62 r 2(4) of the Rules of the Supreme Court gives jurisdiction to this Court to award costs even when sitting in its criminal jurisdiction. A careful reading of that sub-section shows that it does not have the effect suggested.

15. We now come to the first point. This Court's jurisdiction to ward costs being firmly based on, S. 52A(1), we do not think it helpful to examine the extent I of the inherent jurisdiction suggested by counsel. In the light of that sub-section, we are unable to find any inherent jurisdiction to depart from the clear wording of the statutory provision.

16. As to the third point, we do not think that Osman's Case (supra) is of much assistance to the question we are called upon to decide. In Osman's Case the Divisional Court allowed the Hong Kong Government's application for costs arising out of the dismissal of Osman's application for habeas corpus following his committal by the Chief Metropolitan Stipendiary Magistrate to await extradition to Hong Kong. It was held there that the habeas corpus proceedings were proceedings in a criminal cause or matter (at n. 176), and the proceedings in the Divisional Court were proceedings in the High Court (at p. 174). There was however an established practice of awarding costs in habeas corpus applications: see p. 174 e-h; p. 176 f-g. Here we are confronted with an entirely different situation, in the Court of Appeal and not the High Court. Again S. 52A(1) prevails.

17. The fourth point, too, offers little assistance in that the Crown, in asking what our basis for awarding costs was, was clearly in doubt whether we had the jurisdiction to do so. The answer must again be found in S. 52A(l).

18. Lastly, we are still of the view that we are governed by S. 52A(1). Having regard to the circumstances in which the Crown withdrew the application to relist for rehearing, the question of estoppel does not arise.

19. The issue remains: are we sitting in our civil or criminal jurisdiction?

20. The first authority was wish to refer to is Amand v Home Secretary & Minister of Defence of -Royal Netherlands Government (1943) A.C. 147, where, in determining the character of habeas corpus proceedings, Viscount Simon, L.C., said this (at p. 156):

"It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, then matter is criminal."

Lord Wright (at p. 162) put in this way:

"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion might result in the conviction, of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a criminal cause or matter". The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal."

21. On this authority, it seems to us that the question is to whether we are sitting in civil or criminal jurisdiction is not to be determined by reference to the character of the order for costs now applied for on behalf of Mak, but by the criminal trial which ultimately gives rise to the present application.

22. Lord Denning, M.R. in Ex parte Green (1976) 1 QB 11, at pp 15-16, followed Viscount Simon's statement in Amand (supra), and said:

"Apply that test to an application to estreat a recognizance. The outcome is not a 'trial' of the surety. There is no 'possible punishment' of the surety for an 'offence'. A recognizance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt, because the enforcement is different. It is enforceable like a fine. It may be enforced by a warrant of distress, or by committing the defaulter to prison: see sections 64 and 96 of the Magistrates' Courts Act 1952. But that method of enforcement does not alter the nature of the debt. It is simply a civil debt upon a bond and as such it is not a criminal cause or matter."

23. Similarly, it was held in Ex parte O'Sullivan (1984) 2 WLR 107 that the recognizance of a person bound over to keep the peace or to be of good be have our was in the nature of a bond, the failure to fulfil which gave rise to a civil debt.

24. Following these two authorities, the Court of Appeal in The Queen v Eng Bouy (1986) Crim. App. 438 held that an appeal against the order of the High Court forfeiting a sum of $100,000 cash bail which was deposited for the attendance of an accused person for trial should have been brought not in the criminal but in the civil jurisdiction, as this was in the nature of a civil matter, the debt being a civil debt owed by the surety to the Crown: per Huggins, V.-P.

25. Again, by S. 72 of the Criminal Procedure Ordinance, the High Court may order the convicted person to pay costs, and such order comas within the definition of a "sentence" by virtue of S. 80. By S. 83 G, the person condemned to pay costs may appeal to the Court of Appeal. The sentence, or the order to pay costs, is therefore a part of the criminal proceedings. These provisions deal only, with the accused: there are no comparable provisions relating to the Crown.

26. We do not find the authorities governing habeas corpus proceedings, and proceedings relating to bail and estreatment of recognizance of assistance in the instant case before us. Nor is S. 72 of the Criminal Procedure Ordinance of relevance. Furthermore, there was no jurisdiction to award costs in criminal proceedings against the Crown until the enactment of S. 83 XX (2) of the criminal Procedures Ordinance. The test is very succinctly formulated by Lord Bridge in In re Smalley (1985) AC 622 at 644E, where he stated that the criterion which governs the Court's discretion whether or not to make any order for costs is related to the conduct of the trial, "indeed, it may to said to be an integral part of the trial process".

27. In our Judgment, the application made by Mak's counsel for an order for costs against the Crown in respect of the application to relist to rehear is an integral part of the criminal trial process. The application for coots is therefore refused.

Penlington, J.A.:

28. With reluctance I agree with the judgment of Yang, C.J. I am satisfied that there is no inherent jurisdiction to award costs against the Crown. This was the decision in R. v Chu Kwan-hang and ors., 1977, H.K.L.R. 371 and was followed by my own decision in Ng Yui-kin and ors. v R., 1983, H.K.L.R. 356 and by this Court in R. v Lee Chiu-chu, 1986, H.K.L.R. 381. To give us the power to award costs the appellant therefore had to show either that there was a practice to award costs in cases such as this at the date of the enactment of Section 52A of the Supreme Court Ordinance (9th July, 1987) or there was statutory power to award such costs. We have not been referred to any authority where such costs warp awarded, as was done in Ex parte Osman, which is not surprising as applications such as this must he rare. The statutory provision is Section 83 XX of the Criminal Procedure Ordinance which is also of no assistance to the appellant.

29. Notwithstanding the somewhat unusual circumstances in which the application was withdrawn by the Crown for my past I would have awarded the appellant her costs but, with regret, an satisifed we have no power to do so.