HKSAR v. CHAN PAK LIN PERRY

HCMA 258/2014

[2019] HKCFI 3165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 258 OF 2014

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BETWEEN

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REASONS FOR REVIEW OF TAXATION

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1.  The Appellant (“RP”) is a practising barrister and also a member of the Hong Kong Auxiliary Police Force. He was charged with one count of common assault in 2014, and was acquitted after trial by a magistrate. The magistrate refused to award costs to the RP. Upon appeal, the RP was awarded costs of the trial at first instance by the Order of High Court Judge Fung dated 25 November 2014, and costs of the appeal by the Order of High Court Judge Fung dated 13 June 2016, which amended an earlier order dated 22 March 2016.

2.  The RP commenced taxation proceedings on 5 September 2017 with a Bill of Costs (“Bill”) filed.  The Respondent (“PP”) filed their Notice of Objections on 26 September 2017.  Taxation took place on 25 and 26 June 2018 and adjourned part heard to 17 December 2018.  Except for a short session when the RP made submissions in person on the first day of the taxation, the RP was legally represented during the taxation hearing, with a solicitor and a law costs draftsman (“LCD”) attending different parts of the taxation hearing on his behalf. 

3.  By a letter dated 4 January 2019, the RP gave notice of his application for a review of the taxation (“Review Notice”).  The Review Notice sets out two general grounds relied on by the RP for the review and in addition, in relation to the specific items included in the list therein, other grounds specific to those items are set out.  Hearing of the review was originally fixed for 20 September 2019 but had to be adjourned because the RP had not lodged the taxation bundles.  The hearing for the review took place on 3 December 2019. 

LEGAL PRINCIPLES

4.  Upon a review of the taxation of the costs in a criminal case, Rule 8 (3) of the Costs in Criminal Cases Rules, Cap 492, sub, leg. (“the Rules”) provides that:

“Subject to this rule, rules 33 and 34 of Order 62 of the Rules of the High Court (Cap.4 sub. Leg. A) shall apply to a review under this rule with such modifications as may be necessary to make the same applicable to the circumstances of the review.”

5.  For the purpose of this review, rule 34 (2) of Order 62 of the Rules of the High Court is relevant.  Rule 34(2) provides as follows:

“On reviewing any decision in respect of any item, a taxing master may receive further evidence and may exercise all the powers which he might exercise on an original taxation in respect of that item, including the power to award costs of and incidental to the proceedings before him; and any costs awarded by him to any party may be taxed by him and may be added to or deducted from any other sum payable to or by that party in respect of costs.”

6.  As for the principles applicable in a taxation of costs in criminal cases, I will first refer to section 15(a) of the Costs in Criminal Cases Ordinance (“the Ordinance”), which is reproduced below:

15.       General principles

In any criminal proceedings –

(a) The costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;

7.  Rule 7 of the Rules is also relevant.  It reads:

7.  Taxation of costs

(1) The taxing authority must consider the claim, any further particulars, information or documents supplied by the claimant under rule 6 and any representation by any interested party and must allow such costs in respect of—

(a) such work as appears to the taxing authority to have been actually and reasonably done; and

(b) such disbursements as appear to the taxing authority to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate the claimant for any expenses properly incurred by the claimant in the proceedings.

(2) In taxing costs under subrule (1) the taxing authority must take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.

(3) For the purposes of this rule, there must be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the taxing authority may have as to whether the costs were actually and reasonably incurred or were reasonably sufficient in amount must be resolved against the claimant.

(4) Having taxed the costs payable to the claimant, the taxing authority must give notice to the claimant of the costs allowed and payable by virtue of this rule.

(5) Where the taxing authority under subrule (4) has notified a claimant of the costs allowed and payable by virtue of this rule, that claimant must serve on every interested party a copy of that notification.

8.  One matter repeatedly referred to by the RP is his belief that there was concoction on the part of the prosecution witnesses to frame him.  There was however an express statement by the magistrate that the allegation of concoction was not established.  This belief of the RP, whether rightly or wrongly held, has however affected the RP in the handling of the taxation and the review.  For instance, the RP had more than once asked me to listen to the recording of the 999 call made by a prosecution witness which would, in his opinion, show that there had been concoction on the part of him and some other prosecution witnesses. 

9.  The fact that the RP did not repose trust in those representing him in the taxation is also apparent.  He might have harboured doubts that the professionals representing him would not be as emphatic as he would be in impressing upon the court how solid the grounds for his belief are.  Despite reminders from the court that it is not the purpose of the taxation or review proceedings to resolve or decide on the concoction issue, the RP kept going back to it from time to time.  Precious time was wasted for this purpose. 

10.  It may be useful to remind oneself of the general principles stated in section 15(a) of the Ordinance, that costs in any criminal proceedings shall not be punitive.  Thus, even if there had been a finding of concoction, the taxing master would not have awarded more costs to punish the other side, but would only have considered what appears to be reasonably sufficient to compensate the RP for any expenses properly incurred, taking into account the provisions of Rule 7 of the Rules. 

GENERAL GROUNDS

11.  Two general grounds of objection have been set out in the Review Notice.  The first general ground of objection is the failure of the taxing master to take into account and/or give proper weight to matters set out in the written submissions of the RP and the affirmation evidence.  I see no truth in this ground when the background of the case, insofar as is relevant to the taxation process, has been clearly set out in the Bill and taken into account in the taxation of each item in dispute.  The taxing off or down of the items was done where and to the extent that the time claimed was considered to be work that had not been actually and reasonably done or in excess of what is reasonably sufficient to compensate the RP for expenses properly incurred by the RP in the proceedings. 

12.  It is the submission of the PP that a very generous amount of HK$484,763.70 was awarded after taxation in this common assault case.  If it is the view of the PP that the amount awarded is higher than what would have been usually awarded in a common assault case, then I do not see that as helpful.  The taxation was carried out item by item and I had not paid regard to the overall amount when dealing with a particular item. 

13.  The second general ground of objection relates to the application of the case of Fauz Mohammed Khan v The Lord Chancellor [2013] 1 WLR 2385 (“Khan case”).  Both the RP and his solicitor had addressed me on the Khan case at the taxation hearing.  The RP attempted to make submissions himself on the Khan case during the latter part of the morning session on 25 June 2018, but because the copy arranged was incomplete, the matter had to be adjourned to the afternoon on that day with the solicitor of the RP taking over.  As the Khan case is actually relevant to items 1-40, the first group of items under review, I will deal with it in the discussions below.  

ITEMS 1-40

14.  The first 40 items of the Bill are items that relate to the trial, for work done up to the acquittal of the RP.  All 40 items were taxed off at the taxation hearing. 

15.  In the Khan case, the court was concerned with whether the principle of allowing a solicitor who acted in person to recover costs should be extended to the situation of a barrister acting in person.  After going through a line of authorities involving costs claimed by solicitors, the court in the Khan case decided that, with some qualifications, a barrister should be similarly allowed to recover costs for work undertaken by him in his own defence.  One of the qualifications can be found in paragraph 59 of the judgment, the relevant part of which is extracted below:

“…Simply to place Mr Khan in the shoes of junior counsel is to confuse his true status as a claimant. Mr Khan was throughout a defendant/appellant. At no time did he “act” as a member of the Bar. Because he was a member of the Bar who had training, skills and professional experience which were relevant to his circumstances he was entitled to apply them in relation to the preparation and conduct of his own defence. What he cannot do is to recover “costs” by reason of his “attendance” at any hearing or at any conference or by reason of any “work” he performed which could have been performed by any intelligent lay client.”

It is the RP’s submission that based on the Khan case, he as a barrister should be allowed to recover costs for work done by him. 

16.  It should be noted that, in the cases referred to by the court in the Khan case, saving of costs is one of the reasons why the court considered it appropriate to allow solicitors to recover costs when acting in person.  The following passage from Malkinson v Trim [2002] EWCA Civ. 1273 (with the court saying that the principle can be traced back to the case of The London Scottish Benefit Society v Chorley Crawford and Chester (1884) 13 QBD 872) was quoted in the Khan case: 

“The basis of the principle that a solicitor who acts for himself in litigation is entitled to compensation, by way of costs, for his time and trouble is a recognition that he (in common with any other litigant) ought to be indemnified against the expense to which (on the hypothesis that he has been successful in the litigation) he has been unjustly put. The special position of a solicitor is that he does not need to employ others to provide professional skill and knowledge in the conduct of litigation. He can provide that skill and knowledge himself. Further, there is no difficulty in measuring what it costs him to do so; and there is a potential saving in costs if he is not discouraged from doing so.”

17.  The following is an extract from the passage quoted by the court in the Khan case from the judgment of Brett MR in the Chorley case:

“The true rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litigant appearing in person, subject to this restriction, that no costs which are really unnecessary can be recovered. Of this kind are the costs of instructions and attendances.”

18.  According to the RP, items 1-40 should not all have been taxed off particularly in light of the principles laid down in the Khan case, when the counsel and the solicitor representing the RP had not charged him and that it was the understanding he had with his legal team that he would be doing the bulk of the work for his own defence.  It is the submission of the RP that it would be most unjust if the PP can avoid paying for any costs or expenses incurred by the RP for the proceedings which included a trial for 3 days. 

19.  The fallacy of this argument is apparent.  Although the RP is not claiming costs as if he was a senior counsel, I do not think it can be suggested that the costs saved by the RP in not having to pay the senior counsel engaged could be recovered by him.  Nor do I think it open to the RP to claim costs for the work he had undertaken up to the total amount of what his entire legal team (3 counsel and solicitors) could have charged him. 

20.  In addition, the experience and expertise of Mr Khan were considered by the court in some detail in the Khan case, and no doubt these factors are relevant here too.  If any costs are to be allowed to the RP for work done by him, they are to be awarded under the principles in Rule 7 of the Rules and not by reference to how much the PP has been spared by the fact that the legal team of the RP had decided not to seek payment from him. 

21.  The PP questions the applicability of the Khan case in Hong Kong, it being the decision of a judge in the Queen’s Bench Division of the UK after 1997.  I do not see the need to decide whether the principles of the case ought to be adopted in Hong Kong, since the present case is clearly distinguishable from the Khan case, in view of the significant differences between them.  

22.  The costs sought to be recovered by Mr Khan were brief fees in relation to work done by him which would otherwise have been undertaken by counsel instructed on his behalf, and for a period when no junior counsel or no counsel was retained.  In the present case, there is the engagement of a full team by the RP, and he did not take up any role in the legal team which would otherwise have to be undertaken by someone else. 

23.  At the taxation hearing, the LCD confirmed that the waiving of legal fees by the legal team of the RP was decided upon, not at the very beginning, but after the trial was concluded. It might be the understanding of his legal representatives that the RP would be doing the bulk of the work, but that would be a natural division of labour given firstly his familiarity with the case and secondly the zeal and concern he would have over his own defence.  In other words, the RP would have done the work anyway even if his lawyers were to eventually charge him. 

24.  Another concern over the costs now sought to be recovered by the RP are that they are for work that could have been performed by any intelligent lay client.  Such costs fall within the exception mentioned in paragraph 59 of the decision in the Khan case or what Brett MR referred to in the Chorley case as costs of “instructions and attendances”. 

25.  More importantly however is that the Khan case was decided on the basis that Mr Khan was acting in person, although he was a barrister.  As is obvious from the passage quoted in paragraph 15 above and also elsewhere in that judgment, the court kept emphasizing that Mr Khan was throughout a defendant or appellant.  Mr Khan was allowed to recover costs because he did not have full representation.  The same cannot be said of the RP.  A full team of one senior counsel, two junior counsel with instructing solicitors represented the RP throughout the trial.  To regard the RP as a litigant in person can be nothing further from the truth. 

26.  The Khan case is therefore of no assistance to the RP.  Items 1-40 should be taxed off. 

ITEM 42

27.  Item 42 is for work done in preparing a draft Claim of Costs and a without prejudice letter on costs, which includes liaising with solicitors and law costs draftsman, preparing for mitigation and costs application.  4 hours were claimed and 30 minutes was allowed.  The reason for objection stated in the Review Notice is that the item covers a significant amount of work and 30 minutes would clearly be insufficient.  

28.  At the review hearing, I raised the question of whether there was duplication with item 280.  Item 280 is the charge of one hour by the solicitors for attending the Department of Justice negotiating settlement on the whole or part of the Bill of Costs before lodging the same with court for taxation.  Item 280 was agreed between the parties and not taxed by the court.  The RP had no submissions on the question whereas the PP agreed that item 42 should be covered under item 280. 

29.  Having considered the documents in the taxation bundles under this item, it is clear that there is duplication with item 280.  Two sets of costs for the same work cannot come within the “properly incurred” parameter.  Item 42 should therefore be taxed off.  

ITEM 84

30.  Item 84 includes three sub-items – (i) conducting research; (ii) reviewing documents and materials; and (iii) preparing perfected Grounds of Appeal.  10 hours were claimed for item 84 and only 5 minutes were allowed at the taxation hearing.  The reason for objections, according to the Review Notice, is that the time allowed is clearly not adequate. 

31.  Upon being informed that many items (ie items 77, 83(ii), 84(iii), 93 and 94(ii)) relating to the preparation of the Grounds of Appeal were considered together at the taxation hearing, the RP sought to withdraw this item from the review.  The withdrawal was allowed.  

ITEM 107

32.  For item 107, the RP claimed 20 hours for himself reviewing, proofreading and finalizing transcripts of 145 pages that were drafted by a private translation provider during the period from 19-26 September 2014.  I taxed off this item. 

33.  It should be noted that time was claimed under item 108 for receiving, perusing and considering the official court transcripts of the various hearings on 26 September 2014.  Judging from the close proximity of the dates for the two items, the court transcripts would have been applied for when the work under item 107 was carried out.  I therefore asked for the reason for retaining the service of another private translator. 

34.  The RP did not respond directly to the question and only suggested that perhaps the court was quick in providing the official transcripts because the set prepared by the private translator was provided.  I see no merits in this proposition as it is clearly not the practice of the court to provide transcripts based on another version prepared by a third party.  

35.  It was submitted on behalf of the PP that the court always grants applications for transcripts for good reasons and the fact that the RP was then appealing the refusal to award costs to him would have been good reason.  Moreover, reliance has always been placed on court transcripts and not transcripts arranged by a party himself. 

36.  I accept the submissions of the PP.  The costs of retaining the private translator were not reasonably incurred.  Item 107 should be taxed off. 

ITEM 117

37.  Work done under item 117 is (i) conducting research, (ii) reviewing documents and materials, and (iii) preparing Perfected Grounds of Appeal by the RP himself for the period from 3-6 November 2014.  A total of 10 hours was claimed.  According to the Review Notice, this item actually relates to the preparation of the draft Appeal Submissions and not the Perfected Grounds of Appeal and should have been allowed. 

38.  The inaccurate description had actually been dealt with at the taxation hearing and my notes on the Bill have the words “Perfected Grounds of Appeal” crossed out and replaced with “skeleton arguments”.  The objection of the RP is thus misconceived. 

39.  Furthermore, the notes I marked on the Bill indicate that item 117 was considered in conjunction with items 104, 128 and 129.  The description of items 104 (also with a similar inaccurate description amended) is exactly the same as item 117 save that the work in question was done during a different period, and with a separate 6 hours claimed.  Item 128 covers other work, in addition to finalizing the skeleton arguments, whereas item 129 is work done in perusing and considering the finalized version from counsel.  For items 104 and 117 together, I allowed 6 hours; for item 128, I allowed 75 minutes; and for item 129, I allowed 90 minutes. 

40.  I can understand the concern and anxiety of the RP when faced with a charge that he believes to be wrongly brought against him, but the RP was already acquitted then.   An award of costs is not meant as a vindication of the party involved, it is to compensate the party for expenses actually and reasonably incurred.  Going through the skeleton arguments for so many rounds for the purpose of getting a costs award does not come within the “reasonably incurred” description.  Taking into account the time allowed for items 128 and 129, I revise the time allowed for items 104 and 117 to 2.5 hours. 

ITEM 140

41.  There are again three sub-items in the case of item 140 – (i) conducting research; (ii) reviewing relevant documents and materials; and (iii) preparing draft Reply to PP’s submissions.  It was the mistaken belief of the RP that this item was taxed off when in fact it was considered in conjunction with item 158 which relates to other work done in preparing for the appeal hearing.  Upon being informed of the actual position, the RP sought, and was allowed, to withdraw this item from the scope of the review. 

ADDITIONAL ITEMS

42.  The list in the Review Notice includes, as additional items, the costs of the written submissions and the affirmation evidence presented to the court on 25 June 2018.  Right at the start of the taxation hearing, four affirmations by the counsel and the solicitor who acted for the RP in the criminal proceedings and one affirmation of the RP himself (“Taxation Affirmations”) were presented to the court. 

43.  With the four affirmations of the lawyers representing him, they all stated that the RP did the main bulk of the work, that they did not charge the RP and some also indicated the estimate of their charges if the RP had been billed for their services.  That the RP was not charged by his legal team was not disputed by the PP and accepted by the court. For the reasons indicated in paragraphs 19-20 above, the estimate of charges would serve no useful purpose. 

44.  As for the affirmation of the RP himself, it was intended to draw the attention of the court to the background facts which the RP considers to be important.  The background facts have already been set out in the Bill and every opportunity was afforded to those representing the RP to make submissions, whether generally or when a specific item was considered, including submissions on any relevant background facts. 

45.  The solicitor and the LCD who appeared on behalf of the RP were themselves only aware of the intention to put in the Taxation Affirmations not long before the start of the taxation proceedings, in particular the affirmation of the RP himself, and the first thing they did on 25 June 2018 was to seek leave for the RP to himself address the court on the need to file the Taxation Affirmations.  An adjournment was allowed for full instructions to be taken and eventually for the requisite Notice to Act in Person to be filed. 

46.  At the review hearing, both parties had the understanding that leave to file the Taxation Affirmations was granted.  On that basis, the question as to why the work done in preparing the Taxation Affirmations had not been claimed as an item under costs of taxation in Part III of the Bill was raised.  The RP submitted that the LCD might have been confused as to whether leave was granted for their filing and hence had failed to claim for such work under Part III.  

47.  Having checked the transcripts and recordings of the taxation hearing, I have found out that leave to file the Taxation Affirmations was in fact not granted.  There had been some detailed submissions by the RP on the importance of the background of the case that was set out in his affirmation, but the RP eventually accepted that those matters had already been set out in the Bill.  As leave had not been granted, there is no basis for claiming any costs for those documents.  I would add that even if leave had been granted, no costs would have been allowed when, as explained above, they did not serve any useful purpose. 

48.  Furthermore, such costs could only be part of the costs of the taxation and there was no claim for such in the Bill or at the taxation hearing.  This is a review of the taxation that had taken place and not an opportunity for new or fresh items to be claimed.  There would thus still be no ground to allow any such costs. 

49.  The point about the confusion of whether the Taxation Affirmations were allowed to be filed that was raised by the RP, and his submission that that could be the reason why no claim was made for such costs at the end of taxation hearing is without merit as well.  Only the LCD was present when the costs of taxation was dealt with at the end of the taxation hearing, but he was present throughout the taxation hearing.  He would be well apprised of the position had leave been granted.  In any event, even if the LCD had not been present, it would be up to the RP to ensure that the LCD was fully instructed as to what other claims to raise under Part III of the Bill.  It is not open to the RP now to have another go for something he had missed in the first round. 

50.  With the RP having re-opened the issue on the costs of taxation, the time awarded under item 298 has to be re-examined.  Item 298 concerns the costs for attending hearing of the taxation.  Having checked the records, the two hours of the morning session on 25 June 2018 were spent on dealing with the Taxation Affirmations and the attempt of the RP in addressing me on the Khan case.  There was also the express request by the PP for any costs wasted in dealing with the Taxation Affirmations.  As leave to file those affirmations was not granted and the time spent on the Khan case during that session was wasted, such time should not be awarded to the RP as costs of taxation.  Two hours should therefore be deducted from item 298. 

COSTS OF THE REVIEW AND INTEREST

51.  The costs allowed upon review are further reduced.  The PP seeks costs should the outcome of the review be in their favour, while the RP asks for a costs order nisi without making any substantive arguments.  I see no reason not to order costs to follow the event, or not to make an absolute order.  I therefore order costs of the review, including all costs reserved, be to the PP, to be taxed if not agreed.  

52.  One matter I should deal with is the interest recoverable by the RP.  It can be seen from the above that the taxation proceedings had to be adjourned part heard because of the conduct of the RP.  There was much ado on the first day of the taxation hearing, with the solicitor and the LCD seeking leave for the RP to address me in person on the need to file the Taxation Affirmations and then his solicitor taking over in the afternoon to address me on the Khan case.  A Notice to Act in Person was filed by the RP for the purpose, followed soon after by the filing of a Notice to Act by his solicitors.  The hearing on 17 December 2018 would not have been necessary had the court and all parties been spared of all the unsuccessful submissions that were made, and the taxation proceedings would have been concluded on 26 June 2018.  

53.  That being the case, it is not fair to have the PP pay interest for the period accruing after 26 June 2018.  Allowing time to check the figures and to draw up the allocator or its equivalent, I order interest on the costs awarded shall cease to accrue as from 10 July 2018, 14 days after the date when the taxation proceedings should have been concluded.