HKSAR v. CHEN KEEN (alias JACK CHEN) (陳克恩)

FACC Nos 26, 27 & 28 of 2018

[2019] HKCFA 51

FACC No 26 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 26 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO 172 OF 2016)

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FACC No 27 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 27 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO 172 OF 2016)

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FACC No 28 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 28 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO. 172 OF 2016)

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JUDGMENT ON COSTS

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The Court:

1.  On 30 August 2019, the court gave judgment allowing the appellants’ appeals and quashing their convictions for conspiracies to defraud the Stock Exchange of Hong Kong Limited and a listed company and its existing shareholders respectively, and a related money laundering offence against the 1^st appellant, on the grounds of latent duplicity. 

2.  We ordered that there be a retrial with the prosecution being at liberty to amend the indictment or to prefer a fresh indictment.  We further gave directions on the filing of written submissions on costs, which the parties have done.

3.  The parties are agreed that the costs of the appeals to this court should follow the event, and the appellants should have their costs of the appeals. 

4.  As regards the costs of the appeal to the Court of Appeal, again the general rule is that costs should follow the event.  The contentions between the parties relating to costs boil down to one main point, that is, the appellants have raised various grounds of appeal and arguments before the Court of Appeal, which have all been rejected by the Court of Appeal.  The ultimate ground on which they succeeded before this court, namely, latent duplicity, was only one amongst many other unsuccessful grounds argued before the Court of Appeal.  These other grounds were all rejected by the Court of Appeal as unmeritorious.

5.  The respondent therefore submits that there should be an appropriate apportionment of the costs. 

6.  In allowing the appeals of the appellants on the grounds of duplicity, we have not dealt with another issue raised in the appeals, namely, whether there were certain misdirections regarding the relationships among the three appellants so as to invalidate their convictions.  We found it unnecessary to do so particularly given that we were ordering a retrial.  This other issue related to quite a few of the arguments raised before (and rejected by) the Court of Appeal.  We are not prepared to say that the issue was not reasonably argued, and in fact the Appeal Committee had granted leave to appeal on the basis of that issue (as well as the issue on duplicity).  We are therefore not prepared to conclude that the appellants have raised totally unmeritorious grounds of appeal and arguments before the Court of Appeal such that they should be deprived of a portion of their costs before the Court of Appeal.

7.  As to the costs of the trial, the fact that following their successful appeals to this court resulting in the quashing of their convictions, the appellants were not acquitted as such but were ordered to stand a retrial does not prevent them from asking for the costs of the original trial.[1] The matter is entirely in the discretion of the court.[2] To a defendant who has to stand trial a second time, the question of the costs of the original trial is as important a matter to him as it is to a defendant who has been acquitted after trial or after appeal.  Indeed, to the defendant who has to face a second trial, the question of costs affects directly his funding for the second trial.  This is particularly so where, as in the present case, the retrial, like the original trial, is going to be a lengthy and costly one. 

8.  As for the argument that the appellants have brought suspicion on themselves as evidenced by the guilty verdicts which indicate that they were found by the jury to have been dishonest in the transactions in question, again it is related to the issue of misdirections which we have not dealt with in the appeal.  The onus being on the respondent to satisfy us that there are “positive reasons” to deprive the successful appellants of the costs of the trial,[3] and bearing in mind the presumption of innocence which applies equally to an appellant whose conviction has been quashed on appeal and who is ordered to stand a retrial as it applies to a defendant who has been acquitted after trial, we find there is no or insufficient basis for us to deprive the appellants of their costs of the trial.  The issue on which the appellants succeeded on their appeals, namely, latent duplicity, was not a mere technicality, but was a substantive point going to the basis of the charges against them.  Whether the appellants were dishonest in the transactions concerned is a matter for the retrial. 

9.  However, as regards the costs of the proceedings in the Magistrates’ Court (including the costs of the preliminary inquiry which included an evidence gathering exercise in New Zealand), they shall form part of the costs of the retrial and be dealt with accordingly.

10.  As regards a certificate for three counsel, having considered the complexity of the case, the length of the trial, the issues raised on appeal before the Court of Appeal and before this court, and the involvement of London silks, we consider that this is an exceptional case where a certificate for three counsel is justified.[4]

11.  For these reasons, we order that the appellants have their taxed costs in the original trial in the Court of First Instance; of the applications for leave to appeal to the Court of Appeal and in the appeals to that court; of the applications for bail pending appeal to that court; of the applications to the Court of Appeal for certification; of the applications to the Appeal Committee for leave to appeal; and in the appeals to this court, together with a certificate for three counsel.  As for the costs in the Magistrates’ Court, including the costs of the preliminary inquiry, they shall form part of the costs of the retrial, and be dealt with accordingly.