HKSAR v. CHAN KWUN CHUNG

HCCC 437/2015

[2018] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 437 OF 2015

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DECISION
(On D2’s Application for Costs)

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Application

1.  This is an application by the 2nd Defendant (D2) for costs against the Prosecution pursuant to s 17 of the Costs in Criminal Cases Ordinance, Cap 492 (CCCO).  D2’s application was based on this Court’s rejection of the Prosecution’s argument that this was a case of “joint criminal enterprise”.

2.  It should be noted that originally counsel for D2 also relied on a second ground: ie a significant portion of time was spent by the Prosecution to adduce evidence irrelevant to the issues at trial.  D2 later abandoned this 2nd ground.

The Law

3.  S 17 of the CCCO provides:

“17. Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first‑mentioned party to the proceedings by the other party to the proceedings.”

4.  As to the relevant principle, counsel for D2 referred me to two authorities: DPP v Denning [1991] 2 QB 532 and HKSAR v Au Yeung Lai‑hung, Doris [2013] 3 HKLRD 586.

5.  In Denning, Nolan LJ said (541C‑D):

“.... the word ‘improper’ in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary,’ it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly.”

6.  In Au Yeung Lai‑hung the principles stated in Denning was applied (at para 41 of the judgment).

7.  Counsel for the Prosecution relied on what Stock JA (as he then was) described as improper conduct in HKSAR v Wong Wah Yee (No 2) [2001] 3 HKC 1:

“Our attention has been invited to s 17 of the Costs in Criminal Cases Ordinance which permits a court to award costs where in the course of criminal proceedings costs have been incurred as a result of ‘an unnecessary or improper act or omission by or on behalf’ of a party to the proceedings. It is unnecessary to determine whether such circumstances might be invoked in the context of an application for a certificate under s 32, and it is unnecessary because the circumstances envisaged by s 17 is not what the present question is about. The question which we address for present purposes is whether in the ordinary case an unsuccessful application for a certificate may be the subject of a costs order, whereas s 17 addresses particular types of conduct which merit condemnation in costs, such as negligence or specific unreasonable conduct, or improper conduct. Further representations have been made that the s 17 power is directed at matters arising in the course of proceedings rather than in relation to the result of the proceedings, but that too is not necessary to address, for we are satisfied that the section is not directed at the situation with which we are presently concerned.”

D2’s Submission

8.  Counsel for D2 submitted that the Prosecution’s stance that this was a case of “joint criminal enterprise” was “extraordinarily farfetched” and it was “improper” for the Prosecution to present such argument without any factual or legal basis.  In the present case, each of the three defendants faced a separate count, the particulars against each were different and there was no allegation that one defendant was criminally responsible for the particulars of offence laid against the other defendants.

9.  Counsel for D2 submitted that the Prosecution should pay D2’s costs of dealing with this application.

The response of the Prosecution

10.  The Prosecution’s stance was that the Prosecution’s application to admit the evidence of a co‑defendant against another co‑defendant under the doctrine of joint enterprise was not “improper” so as to merit a “condemnation in costs”.

11.  Counsel for the Prosecution submitted that during the hearing, the Prosecution advocated “two routes” during its argument to support the application:

(1) That all three defendants were joint tortfeasors under civil law which co-existed with joint enterprise under criminal law;

(2) The “building‑block” concept – to use the fact of D2’s breach as evidence against the other two defendants.

12.  Further, Counsel for the Prosecution submitted that whilst counsel for D1 and D3 filed their respective skeleton arguments opposing the admissibility of evidence under these two routes, no skeleton argument was filed by counsel for D2.  During the hearing, counsel for D2 merely adopted the submission of D1 and made no substantive submission.

13.  Counsel for the Prosecution submitted that while this Court ruled against the joint criminal enterprise route, this Court allowed the Prosecution to make further submission on the “building‑block” route if and when the issue arose during the course of the trial.

14.  Finally, the Prosecution also submitted that D2’s application for costs was not made “immediately”, this Court can therefore take the delay into account in consideration of how to exercise its discretion on the issue of costs (citing Au Yeung Lai Hung, Doris in support).

My consideration

15.  I set out in my Decision (para 32 – 52) the arguments advanced by the Prosecution in relation to the joint criminal enterprise route and the building‑block route, and my reasons for rejecting the Prosecution’s submission on joint criminal enterprise.

16.  The fact that I rejected the Prosecution’s argument or submission after hearing full arguments does not mean that the submission was “improperly” made.  In fact, it was because of a question raised by this Court: whether the defendants are jointly charged when they each faced a separate count, that necessitated parties to make submissions on this issue.

17.  Further, although I ruled against the Prosecution in relation to the joint criminal enterprise route, I have left open the building‑block route for future argument (though such a scenario never materialised).

18.  Unlike counsel for D1 and D3, counsel for D2 never submitted any skeleton argument on this issue, it was only after counsel for D1 had finished his submission, when called upon by this Court, that counsel for D2 informed this Court that he would adopt the submission of D1’s counsel.  That being the case, even if this Court were to order the Prosecution to pay costs, it would have been extremely difficult, if not impossible, for this Court to assess the amount of award without any reference to actual work done.

19.  As to the question of “delay”, I would mention in passing here that although counsel for D2 did not indicate D2’s intention to ask for costs against the Prosecution when the Prosecution made its intention known (on 13 December 2017), it was made known to this Court soon enough (on 18 December 2017).  I do not consider such a delay significant enough to affect my discretion in relation to the costs application.

20.  For these reasons the Prosecution will not be ordered to pay costs to D2.