WINNIE LO v. HKSAR

FACC No. 2 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2011 (CRIMINAL)

(ON APPEAL FROM CACC NO. 254 OF 2009)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ:

1.  This is the judgment of the Court.  The appellant, a practising solicitor, was convicted in the District Court of conspiracy to commit maintenance in connexion with her conduct of a personal injury action.  She was sentenced to imprisonment for 15 months.  Her appeal to the Court of Appeal was dismissed.  She had served 6 months of her sentence before being granted bail and before her conviction was quashed when this Court allowed her appeal on 30 January 2012. 

2.  Submissions as to costs have been filed by both sides.  Since the appellant essentially seeks the costs of the entire proceedings, subject to minor possible adjustments, we shall focus on the submissions of the respondent urging orders which minimise the costs payable to the appellant.

Suspicion brought upon herself

3.  The respondent’s first argument is that the appellant should be denied the costs of the trial on the ground that she brought suspicion upon herself.  One must therefore ask: What was the nature of the prosecution’s case against her?   Did she do something to bring suspicion upon herself so as to encourage pursuit of that case?

4.  The proper starting-point is that the appellant was duly instructed by the plaintiff’s next friend and mother to act as solicitor on the record in a bona fide piece of personal injury litigation. There was no suggestion that the appellant had mishandled the case or obtained a settlement which was less than fair.  She acted in accordance with counsel’s advice without anyone suggesting that there was anything improper about the way counsel had acted.  Nor was it ever suggested that she had shared any part of the settlement amount.  Despite the apparently legitimate role played by the appellant as litigation solicitor, the prosecution’s case was that the only reasonable inference to be drawn on the evidence was that she had abetted Cheung’s undoubted champerty by helping Cheung to get her hands on 25% of the settlement funds.

5.  Did the appellant do anything to justify a suspicion that she had so abetted Cheung?  In our view, the answer is plainly “No”.  The defects in the approach of the prosecution and the trial judge are summarised in the judgment as follows:

“...the finding that Lo knew of and connived with Cheung is in my view unsustainable. The inferences drawn by the Judge and upheld by the Court of Appeal were founded in part on irrelevant materials and in part on matters that ought to have been regarded as exculpatory but were unjustifiably treated as incriminating. The prosecution’s reliance on the 4 May 2005 meeting failed properly to take account of the context of what was said. The inference that Lo knew and wished to assist Cheung’s champertous scheme was against the inherent probabilities. The suggestion that the means of assisting Cheung involved a contrived legal opinion is irreconcilable with acceptance that there was nothing improper about counsel’s involvement. Counsel’s reasoning showing how the $871,531.54 figure was arrived at is transparently accessible and belies the suggestion that it was improperly manipulated.”[1]

6.  The prosecution persisted in the case, not because the appellant had brought suspicion on herself, but because it espoused the drawing of erroneous and unjustified adverse inferences against her.

She should be deprived of costs in relation to issues determined against her

7.  The appellant succeeded on the substantial and grave injustice ground but failed on the two other grounds raised on the appeal.  She had sought unsuccessfully to argue that the offences of maintenance and champerty are unconstitutional for uncertainty and also that, not having been invoked for such a long time, they had fallen into desuetude. 

8.  The respondent submits that she should therefore be deprived of 50% of her costs of the substantive hearing in this Court and also of the hearing in the Court of Appeal, where the legal uncertainty point was also unsuccessfully taken.  However, the legal uncertainty point was certified by the Court of Appeal and leave granted by the Appeal Committee to argue it.  This was the first criminal prosecution mounted for maintenance (or champerty) in a very long time and the question whether it was unconstitutionally uncertain merited consideration by the Court.  The desuetude point was only addressed in the appellant’s printed case and not mentioned orally at the hearing.  The great bulk of the hearing was devoted to deciding whether there had been a substantial and grave injustice and on that issue, the appellant succeeded.  We do not consider that in the circumstances of this case, the appellant should be deprived of any part of her costs because she lost on the other two points. 

Certificates for counsel

9.  Guidance was given as to the grant of certificates for the appearance of more than one counsel in this Court in Hebei Enterprises Ltd v Livasiri & Co[2] and in HKSAR v Egan (No 2).[3]  The Court of Appeal gave similar guidance in Cheung Cho Kam Sindy v Cheung Yuet Ying Rose.[4]

10.  It is unnecessary to ask for a certificate for two counsel at substantive hearings of this Court.  A certificate should be sought for three or more counsel.  In the present case, such a certificate is sought by the appellant in relation to the applications before the Court of Appeal and the Appeal Committee for leave to appeal; the substantive hearing of the appeal in this Court and the written submissions as to costs. We are unable to see any justification for three counsel and decline to provide a certificate in respect of the aforesaid matters.

Other matters

11.  The Court is invited to make costs orders concerning various applications, including bail applications made below.  Those are matters which, if necessary, should be dealt with on taxation and not by the Court.  Subject to questions of taxation, we order that the appellant should have her costs here and below.