HKSAR v. WONG TSZ YUK

HCMA183/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 183 OF 2008

(ON APPEAL FROM ESCC 1202 OF 2007)

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BETWEEN

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D E C I S I O N

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A.      THE JURISDICTIONAL QUESTION

1. The jurisdictional question raised by this appeal is : Does a judge of the Court of First Instance have jurisdiction to review the taxation of costs by a High Court master as the taxing authority pursuant to a costs order made under the Costs in Criminal Cases Ordinance (Cap. 492) (“CCCO)”?  This question has not emerged since CCCO came into force on 17 January 1997 until now.  This appeal arose in this way.

2. The appellant was charged with the offence of assaulting a police officer, contrary to section 36(b) of the Offences against the Person Ordinance (Cap. 212).  After trial, the magistrate acquitted him but refused to give him costs.  The appellant appealed under section 19 of CCCO.  On 2 May 2008, Tong J allowed his appeal and under section 8 of CCCO ordered the respondent to pay the appellant costs of the trial and further under section 20(1), ordered those costs to be taxed if not agreed.

3. Pursuant to section 20(2) of CCCO and rule 7 of the Costs in Criminal Cases Rules[1] (“CCCR”), the taxation took place before Master Ho on 1 December 2008.  The learned master taxed down his costs to HK$142,780.  The appellant then applied under rule 8 of CCCR for a review on items 1, 2, 4, 5(a), 18 and 40 of his bill of costs.  By decision handed down on 2 June 2009, the learned master dismissed the review.  The appellant then lodged this appeal, effectively asking this court to review his decisions on the above items[2].

B.      NO EXPRESS PROVISIONS FOR FURTHER REVIEW IN CCCO AND CCCR

4. One naturally approaches the jurisdictional question by first looking at the relevant provisions in CCCO and CCCR.

5. Section 20 of CCCO empowers the court to order costs to be taxed and designates the taxing authority as follows :

“(1)    Where an order for costs is made by a court[3] or a judge[4] under this Ordinance the court or the judge may order that those costs be taxed.

(2)     Where an order that costs be taxed is made under this section—

(a)   by a magistrate or by the District Court, those costs shall be taxed by the Registrar of the District Court;

(b)   by a judge or by the Court of Appeal, those costs shall be taxed by the Registrar of the High Court.”

6. Section 21 enables a party who is aggrieved by the taxation to apply for review :

“…

(a)     in the case of costs taxed under section 20(2)(a), to the Registrar of the District Court; and

(b)     in the case of costs taxed under section 20(2)(b), to the Registrar of the High Court,

…”

7. In short, for a costs order made by a magistrate or the District Court, the costs will be taxed and reviewed, if necessary, by the Registrar of the District Court.  For a costs order made by the Court of the First Instance or the Court of Appeal, the taxing and reviewing authority is the Registrar of the High Court.  The jurisdiction to tax costs and review by the two Registrars may be performed by a District Court master and a High Court master as the case may be[5].  CCCO does not expressly provide for any further review beyond the taxing authority.

8. The same set of procedure applies to the review by both the Registrar of the District Court and the Registrar of the High Court.  It is laid down in rule 8 of CCCR :

“…

(3)     Subject to this rule, rules 33 and 34 of Order 62 of the Rules of the High Court (Cap. 4 sub. leg.) (‘RHC’) 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.

…”

Likewise, no further review against the taxing authority’s decision is expressly provided for.

9. However, the matter does not end there.

C.      CAN ORDER 62, RULE 35 BE PROPERLY ENGAGED?

10. Order 62, rule 2(4) of RHC stipulates :

“The powers and discretion of the Court[6] as to costs … under the enactments relating to the costs of criminal proceedings to which this Order applies shall be exercised subject to and in accordance with this Order.”  [Emphasis supplied]

If the phrase emphasized in rule 2(4) covers CCCO, then Order 62, rule 35 can be properly engaged.  Put more accurately, if Order 62 applies to the exercise of the powers and discretion of the High Court under CCCO and CCCR, then Order 62, rule 35 can be properly engaged to enable a judge of the Court of First Instance to review the decision of a High Court master as taxing authority under rule 8 of CCCR.  That focuses the inquiry to the jurisdictional question on this issue : whether on a proper interpretation of Order 62, rule 2(4), Order 62, rule 35 can be so engaged?

11. I digress to deal with the submissions made by counsel at the hearing on Order 1, rule 2(3) of RHC.  That rule provides :

“These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which … Order 62 … applies.”

Its effect is that the provisions in RHC, including Order 62, rule 35, only apply to those criminal proceedings to which Order 62 applies.  It does not really add anything further to what is already contained in Order 62, rule 2(4).

D.      STATUTORY INTERPRETATION

12. Section 19 of the Interpretation and General Clauses Ordinance (Cap. 1) directs the courts to approach statutory interpretation in these terms :

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

Section 19 also applies for the interpretation of RHC : Order 1, rule 3.

13. However, as observed by Bokhary PJ in Medical Council of Hong Kong v Chow Siu Shek [2000] 2 HKLRD 674, at p. 682J-683B, section 19 does not provide any practical guidance on how to go about to achieve the interpretation stipulated.  His Lordship said at p. 683B-F :

“  Section 19 plainly establishes that legislation is to be interpreted as being remedial.  But beyond that the section deals with what is to be done rather than how to do it.  As a general statement of the proper approach to be followed in most if not all cases calling for statutory interpretation, I think that there is much to be said for the statement in Bennion : Statutory Interpretation (3^rd ed., 1997) at p. 424 that :

    … the basic rule of statutory interpretation is that it is taken to be the legislator’s intention that the enactment shall be construed in accordance with the general guides to legislative intention laid down by law; and that where these conflict the problem shall be resolved by weighing and balancing the interpretative factors concerned.

What interpretative factors are concerned in any given instance must depend on its circumstances.

    The upshot, as I see it, is as follows.  When the true position under a statute is to be ascertained by interpretation, it is necessary to read all of the relevant provisions together and in the context of the whole statute as a purposive unity in its appropriate legal and social setting.  Furthermore it is necessary to identify the interpretative considerations involved and then, if they conflict, to weigh and balance them.”

14. I will bear these instructive statements in mind when interpreting the relevant provisions below.

E.      THE STATUTORY SCHEME IN CCCO AND CCCR 

15. In my view, Order 62, rule 2(4) cannot be considered in the context of RHC alone.  It must be read in conjunction with CCCO and CCCR, the very enactments that delineate the court’s powers and discretion as to costs in criminal cases as specifically provided for.  The statutory scheme established by CCCO and CCCR provides the appropriate legal setting against which rule 2(4) is to be considered.

E.1.   The legislative history

16. To fully understand the statutory scheme in CCCO and CCCR and appreciate its effect, one has to begin with the legislative history leading to their enactment.

17. The courts in Hong Kong do not have inherent jurisdiction to award costs in criminal cases : R v Chu Kwan Kong & others [1977] HKLR 377.  Such jurisdiction is entirely dependent on statute : AG v Ho Yuet Kwong [1971] HKLR 259.  Ancillary to the jurisdiction to award costs are the powers to tax and review.  So those powers are also dependent on statute.  Although the jurisdiction of courts on costs in criminal cases derives from statute exclusively, no particular ordinance or rules was devoted entirely to the subject before CCCO and CCCR came into force in January 1997.  Instead, different provisions were scattered in various Ordinances.  As a result, there were considerable disparities in the law and practices at different levels of court on (a) how the jurisdiction to award costs in criminal cases should be exercised; and (b) the procedure for ascertaining the amount of costs.

18. Those different statutory provisions on costs in criminal cases fell into two broad categories.

19. The first category related to provisions to award costs generally.  They were found in the Magistrates Ordinance (Cap. 227) and the Criminal Procedure Ordinance (Cap. 221).

20. The provisions in the Magistrates Ordinance are :

(1)     Section 69— the magistrate may order costs not exceeding $5,000 against the defendant upon conviction or against the complaint upon dismissal.

(2)     Section 70—it sets out the procedure for compelling the prosecution to pay costs.

(3)      Section 117(2)(b)—when an appeal is abandoned, the magistrate may order the appellant to pay such costs as the Registrar of the High Court may determine to be just and reasonable.

(4)      Section 120(1)—a judge may make such order as to costs in favour of the appellant on an appeal under section 105 or 113 of the Magistrate Ordinance when allowing the appeal.  He may fix the costs or order taxation.

(5)      Section 120(2)—the payment of costs ordered by the judge on the appeal may be enforced as a civil debt recoverable in the District Court.

21. The following provisions in the Criminal Procedure Ordinance are pertinent :

(1)     Section 72—the High Court may award costs against the defendant upon conviction of an indictable offence.

(2)     Section 73A—the High Court and the District Court may order costs to be paid out of the public revenue of the defendant’s costs upon acquittal.  The amount of costs shall be ascertained by the Registrar of the District Court or the Registrar of the High Court as the case may be unless it is fixed by the court.

(3)     Section 83XX—the Court of Appeal may in the appeals as prescribed in subsection (1) award costs to the appellant out of the public revenue when allowing the appeal.  The amount of costs shall be ascertained by the Registrar of the High Court unless it is fixed by the Court of Appeal.

22. The second category consisted of miscellaneous provisions giving the courts the power to award costs in criminal proceedings relating to specific offences, such as :

(1)     Section 28 of the Prevention of Bribery Ordinance (Cap. 201)—the High Court and the District Court may award costs to the defendant upon acquittal of an offence under Part II of the Ordinance.

(2)     Section 25 of the Complex Commercial Crimes Ordinance (Cap. 394)—the court can award costs to either party against the other for costs incurred as a result of an unnecessary or improper act or omission.

(3)     Section 28 of the Trade Descriptions Ordinance (Cap. 362)—the magistrate or the court hearing the proceedings may make such order as to costs as it may think fit.

23. Two significant deficiencies relating to jurisdiction readily emerged from the above provisions.

24. First, not every situation where costs would normally arise was catered for.  Lacking any inherent jurisdiction, the court had no power to award costs in some scenarios even though such an order was justly and appropriately called for.

25. Second, the approach as to how the courts should exercise the jurisdiction was not uniform.  In the magistracies, costs might be awarded to a defendant upon acquittal only if the magistrate was satisfied that the proceedings ought not to have been instituted or pursued : section 69(1) of the Magistrates Ordinance.  In the District Court and the High Court, costs were normally awarded to an acquitted defendant unless there were positive reasons why costs should not be so awarded, that is, he had brought suspicion upon himself and had misled the prosecution into thinking that the case against him was stronger that it was.  In the Court of Appeal, an additional positive reason for not awarding costs would be where there was ample evidence to support a conviction but it was quashed by the Court on a technicality which had no merit.  See R v Kwok Moon Yan & Lok Man Chiu [1989] 2 HKLR 396 at p. 401B-F.  Other than that additional reason which is unique to the Court of Appeal, the difference in approach was difficult to justify.

26. The procedure for determining the amount of costs in criminal cases at different levels of court also differed.

27. There was no specific provision directing taxation for costs ordered by the High Court.  Mr Leung, Acting SADPP for the Government, who has considerable experience in the matter, told me that if the a judge ordered costs to be determined by the Registrar, the practice was to adopt Order 62 on the assumption that it applied.  (It seems to me that the assumption is supportable by Order 1, rule 2(3) and Order 62, rule 2(4) of RHC.)  The same was true for a costs order made by the Court of Appeal : R v Kwok Moon Yan & Lok Man Chiu, supra, per Silke VP at p. 399H.  Thus the costs would be first taxed by a taxing master and if need be, reviewed by him and further by a judge.

28. If, however, the costs order was made by the District Court under section 73A of the Criminal Procedure Ordinance, the jurisdiction to tax the costs by the Registrar of the District Court derived from section 73A(3).  Order 62 of RHC was not properly engaged.  Accordingly, the Registrar of the District Court did not have power to subsequently review his taxation.  A judge of the High Court did not have power to review that taxation either.  See HKSAR v Cheung Siu Ki [1997] 3 HKC 344.

29. A magistrate had the power to fix the amount of costs not exceeding HK$5,000 but he could not order taxation.  Upon abandonment of an appeal, the magistrate might make an order under section 117(2)(b) of the Magistrates Ordinance.  Mr Leung’s research shows that the prosecution had never applied for costs under section 117(2)(b) against an appellant who had abandoned a magistracy appeal.  I doubt if any defendant had ever deployed section 117(2)(b) against the prosecution.  In any event, on the materials before me it is not clear whether as a matter of practice, the Registrar would adopt Order 62 of RHC to tax the costs under a section 117(2)(b) order.

30. The anomalies and inconsistencies in the law and practices relating to costs in criminal cases cried out strongly for reform.

E.2.   The reform introduced by CCCO and CCCR

31. The reform was introduced by CCCO and CCCR, which became effective on 17 January 1997.  It applies to all levels of courts except the Court of Final Appeal[7].

32. The overall purpose of CCCO is seen in its title : “An Ordinance to provide for costs in criminal cases”.  This overall purpose is achieved by (a) a set of coherent principles governing the jurisdiction for awarding costs in criminal cases generally and (b) a common procedure for determining the amount of costs for all costs orders specifically provided for.

33. On the governing principles on jurisdiction, CCCO first repeals most of the provisions to award costs generally, namely, sections 72, 73A and 83XX of the Criminal Procedure Ordinance and sections 69, 70 and 120(2) of the Magistrates Ordinance (sections 23 and 24 of Ordinance No. 39 of 1996).  It then sets out very elaborate, if not comprehensive, provisions on different circumstances where costs may

be awarded generally to the defence (Part II[8]) and the prosecution (Part III[9]).  These provisions now become the only basis for founding the jurisdiction for awarding the costs in question.

34. On assessing the amount of costs, section 15 in Part IV unifies the approach by providing that in any criminal proceedings, the costs, inter alia, shall not be punitive but shall be compensatory (section 15(a)) and just and reasonable (section 15(c)).[10]

35. The general provisions on costs that survive CCCO are sections 117 and 120(1) of the Magistrates Ordinance.  But they have little bearing on the overall scheme.  Section 117 is limited to the costs for an abandonment of a magistracy appeal.  Section 120(1) must now be read together with section 8(a) of CCCO.  Section 8(a) provides that where a judge allows an appeal to which section 105 or 113 of the Magistrates Ordinance applies, in the exercise of his powers under section 120 of that Ordinance, he may order that costs be awarded to the defendant.  Thus when a judge awarded costs to the defendant in allowing a magistracy appeal, as Tong J did in the instant case, the jurisdiction that he exercised now derives from section 8(a) of CCCO.

36. Also surviving CCCO are the miscellaneous provisions on costs for specific offences.  They remain outside the scope of CCCO.  The interplay between them and CCCO does not arise in this appeal.  It does not impact on the focal issue identified in paragraph 10 above.

37. As to the means for determining the amount of costs, taxation now applies across the board (section 20)[11].  The taxing authority is designated according to the court which made the costs order (section 20(2)(a) and (b)).  An aggrieved party may apply for review to the same taxing authority (section 21).  The same set of procedure applies for taxation and review for all costs orders and is to be found in rule 7 and rule 8 of CCCR.

E.3.   A complete and self-contained code

38. In my judgment, when viewed against the legislative history leading to the enactment, the overall purpose and the extent of reform introduced, CCCO and CCCR is, patently, a complete and self-contained code on the applicable law and practices for all the costs orders that they specifically provide for, aiming at removing all the anomalies and inconsistencies, insofar as those costs orders are concerned, as highlighted in section E.1 above.

F.      INTEPRETING ORDER 62, RULE 2(4)

39. With that in mind, I now turn to examine Order 62, rule 2(4) more closely.

40. To recap, the question is whether the phrase in rule 2(4)—“the powers and discretion of the court as to costs under the enactments relating to costs of criminal proceedings to which [Order 62] applies”—covers CCCO.  The upshot is whether Order 62 has any application to the costs orders specifically provided for in CCCO and CCCR.

41. Since, as I have found, CCCO and CCCR is a complete and self-contained code for the costs orders specifically provided for, the law and practices relating to those costs orders are to be found in CCCO and CCCR alone.  It follows that Order 62 does not apply to them with the only exception allowed by rule 8(3) of CCCR : rules 33 and 34 apply with such modifications as may be necessary for the review before the taxing authority.

42. Mr Chan, amicus curiae, submitted Order 62, rule 35 can be properly engaged by virtue of rule 2(4).  He took a number of points.

43. Mr Chan first submitted that that particular phrase in rule 2(4) is “a legislative shorthand” for “the enactments in which there are provisions providing for costs in proceedings which are in the nature of criminal proceedings”.  So Order 62, rule 2(4) should read : “the powers and discretion of the court as to costs under the enactments on costs in criminal cases, which in the present context mean CCCO and CCCR, should be exercised subject to and in accordance with Order 62”.  He relied on the fact that the same phrase had been used before the introduction of CCCO and CCCR since 1988 at a time when although all the statutory provisions for costs in criminal proceedings did not contain any specific reference to Order 62, Order 62 nevertheless applied, presumably on the strength of the language used in that phrase.  With respect, I disagree.

44. The proposed legislative shorthand, couched in an all embracing manner, violates the language actually used in Order 62, rule 2(4), which expressly limits the application of Order 62 to those provisions “to which Order 62 applies”.  Further, its effect is that Order 62 would apply regardless of what is contained in any enactments relating to costs in criminal cases, which are, in the instant case, CCCO and CCCR.  This cannot be right.  Order 62, rule 2(4) must now be read together with CCCO and CCCR, with reference to which the scope of its application is determined.  No useful assistance can be derived from what happened before their introduction for the interpretation of rule 2(4) to determine if Order 62 applies to the powers and discretion of the court as to costs under CCCO and CCCR.

45. Mr Chan next relied on two interpretative factors.

46. The first interpretative factor is that the court should be reluctant to find a radical change by a side-wind.  Mr Chan submitted that the right under Order 62, rule 35 to review the taxing master’s decision on costs in criminal cases to a judge existed before the introduction of CCCO and CCCR.  There is no clear indication in CCCO and CCCR that the legislature intended to make such a radical change as removing the right, thereby making the taxing master’s decision immune to any review by higher courts.

47. In my view, it was not by a side-wind that the right to review before a judge the decision by a High Court master on a costs order specifically provided for in CCCO and CCCR was removed.  When introducing the wholesale reform by CCCO and CCCR, the legislature must be fully aware of the previous practice of review before a judge.  Yet, the legislature chose to limit the right to review in section 21 of CCCO to the taxing authority only.  The decision was plainly deliberate.  The intention is crystal clear : the review before a judge is no longer permissible under the new regime of CCCO and CCCR.

48. The second legislative factor that Mr Chan relied on is that the context in which a stature is to be interpreted includes other statues in pari material, that is, statues dealing with comparable matters.

49. Mr Chan submitted that Order 62, rule 35 is applicable to costs in arbitration proceedings and all High Court civil matters.  A party enjoys the right to apply for review against the decision of the taxing master.  But I do not think costs incurred in civil proceedings and arbitration proceedings are comparable to costs in criminal cases, which can be seen readily from the following remarkable differences :

(1)     Costs in criminal cases do not carry interest.  Costs in civil cases do.

(2)     The only basis upon which costs in criminal cases is to be taxed is “reasonably sufficient for expenses properly incurred” (section 15(a) of CCCO and rule 7(1) and (3) of CCCR).  In civil cases, more bases are available for costs as between the parties to be taxed[12].

(3)     In criminal taxation, 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 (rule 7(3) of CCCR).  No such similar rule exists in civil taxation.

(4)     Wasted costs in criminal case are not subject to taxation.  The court has to specify the amount (rule 3(1) of CCCR).  In civil cases, wasted costs are normally taxed.

50. Mr Chan then referred to the law and practices of costs in criminal cases in the Court of Final Appeal Ordinance (Cap. 484).  Under section 43, costs are awarded by the court are taxed by the Registrar of the Court of Final Appeal.  Under rule 57 of the Court of Final Appeal Rules, all costs directed by the court to be taxed by the Registrar shall be taxed in accordance with Order 62 except rule 35 of RHC with such modifications as may be necessary.  Further under rule 59, if the court directs a party to bear the costs incurred in the courts below, such costs shall be taxed in accordance with the rules for the time being regulating taxation in the courts below.  Section 45 of the principal Ordinance provides for appeal against the decision made by the Registrar on taxation.  Mr Chan submitted that there is simply no material to find a clear legislative intent in CCCO and CCCR to treat costs in criminal cases in lower courts differently and to deprive a party in those cases of his right to have his grievances in taxation re-dressed by higher courts.

51. The statutory regime in the Court of Final Appeal Ordinance does not support Mr Chan.  It deals with costs in the criminal proceedings in the Court of Final Appeal only.  The right to appeal under section 45 is not indicative of a similar right of review in the context of CCCO and CCCR.  More importantly, section 45 tends to show that because the jurisdiction of courts on costs must derive from statute, an express provision is necessary to confer on higher courts the jurisdiction to review the decision of the taxing authority.  Absent any such express provision in CCCO and CCCR conferring the requisite jurisdiction, no further review from the decision of the taxing authority to higher courts is permissible.

52. Mr Chan lastly relied on section 117(2)(b) of the Magistrates Ordinance.  He submitted that when a magistrate orders costs on an abandonment of an appeal to be fixed by the Registrar of the High Court, the Registrar needs to apply Order 62, which means that her decision is reviewable by a judge under rule 35.  Such reliance is misplaced for the simple reason that a section 117(2)(b) costs order does not fall within the statutory regime of CCCO and CCCR.  Even if Order 62 applies to a section 117(2)(b) order, which remains to be seen and decided when the occasion arises in the future, it does not necessarily follow that a similar review before a judge is allowed for the costs order specifically provided for in CCCO and CCCR.

G.      RULES 8(9) and 9 OF CCCR

53. Finally, I come to Mr Chan’s reliance on rules 8(9) and 9 of CCCR.

54. Rules 8(8) and (9) instruct the taxing authority to give written reasons for its decision upon request, which must be made within the time prescribed thus :

“(8)    The applicant or any interested party can request the taxing authority to give reasons in writing for its decision and, if so requested, the taxing authority must comply with the request.

(9)     Subject to rule 9[13], any request under subrule (8) must be made in writing within 21 days of receiving notice of the decision.”

These requirements mirror those laid down in under Order 62, rule 35(1), except the request for decision must be made within 14 days or such shorter period as may be fixed by the taxing master.

55. The requirements in Order 62, rule 35(1) must be fulfilled before the review procedure before a judge can be invoked.  Mr Chan contended that the similar requirements in rules 8(8) and (9) have the effect of linking up the review procedure with that in Order 62, rule 35 thereby triggering its application and enabling a judge to review the decision of the taxing authority made under rule 8(3) of CCCR.

56. Mr Chan submitted that a due measure of real meaning and substance should be accorded to a provision : see Medical Council of Hong Kong, supra, at p. 686H.  The requirements in rules 8(8) and 8(9) tends to show that Order 62, rule 35 is intended to be applicable or else the whole procedure laid down there cannot be accorded a due measure of real meaning and substance.  No meaningful purpose will be served by the requirements unless they trigger the application of Order 62, rule 35.

57. This “linking-up” mechanism raises considerable difficulties.  It contradicts the overall purport of CCCO and CCCR as a complete and self-contained code.  It is in particular inconsistent with section 21 of CCCO under which review is to be carried out by the taxing authority and nobody else.  It does not sit well with rule 8(3) of CCCR (applying Order 62, rules 33 and 34 with necessary modifications), which shows that the application of a particular provision outside CCCO and CCCR, a complete and self-contained code, must be by way of clear and express provision.  It amounts to a very oblique and obscure way of linking the taxation regime in CCCO and CCCR to Order 62, rule 35.  It purports to implicitly confer jurisdiction on a High Court judge to review decisions by the Registrar of the District Court on costs orders made by a magistrate or the District Court as well.  However, a High Court judge did not have jurisdiction to review the taxation by the Registrar of the District Court before CCCO and CCCR came into force[14].  That being the case, the “linking-up” mechanism offends the rule against introducing a change by side-wind. 

58. Having balanced all the factors, I reject Mr Chan’s submissions.  In my view, the requirements in rules 8(8) and (9) merely give finality to the matter before the taxing authority and no more.  They do not provide any basis for conferring jurisdiction on a judge to review under Order 62, rule 35.

H.      CONCLUSION ON JURISDICTION

59. For the above reasons, I hold that Order 62, rule 35 of RHC cannot be properly engaged for the costs orders specifically provided for in CCCO and CCCR.  The answer to the jurisdictional question identified in paragraph 1 above is “no”.  Accordingly, this court has no jurisdiction to review Master Ho’s decision.  The appeal must fail on this ground alone.

60. For completeness, I would like to deal with two minor points.  The first point was raised by me with the parties at the hearing, which is this : even if Order 62, rule 35 of RHC is not engaged, can I still hear the appeal by virtue of Order 58?  Both Mr Chan and Mr Leung submitted that I could not do so.  I agree.

61. The second point arose from Mr Chan’s preliminary submission.  He submitted that the costs order by Tong J was made pursuant to section 120(1) of the Magistrates Ordinance.  Taxation under the “old” regime of Order 62 should apply.  For the reasons stated in paragraph 35 above, I disagree.  Order 62 does not apply to a costs order made under section 8(a) of CCCO.

I. NO SUBSTANCE ANY WAY

62. Again for completeness, I will briefly deal with the substance of review on the assumption that I have jurisdiction to do so under Order 62, rule 35.

63. The items that the appellant applied to review before Master Ho were items 1, 2, 4, 5(a), 18 and 40 of his bill of costs.  Before this court, he can only review those items and no more : see Order 62, rule 35(1).  At the hearing before me, the appellant sought to include other items.  That is, of course, impermissible.

64. According to Tong J’s order, the appellant is entitled to the costs of the trial.  However, items 1, 2, 4, 5(a) and 18 are not related to the costs of the trial at all.  To justify his claims on those items, the appellant sought to expand the meaning of “trial” to include the entire criminal proceedings commencing from his arrest by the police.  That is wrong.  Item 40 is in substance a claim for the appellant’s loss of earning for attending the trial and the appeal.  But the appellant was along legally represented.  As a matter of principle, he is only entitled to recover the legal costs that he had incurred and not any loss of earnings.  In any event, the evidence that he adduced did not support that particular item.  The learned master was entirely correct in disallowing all the items.

65. It follows that I would have dismissed the review for lack substance any way.

J. ORDERS

66. I order that this appeal be dismissed.

67. Mr Leung submitted, and rightly so in my view, that if the appeal is dismissed on lack of jurisdiction, he would not be asking for costs against the appellant.  I will therefore make no order as to costs as between the parties.

[1]    Made under section 22 of CCCO, which also came into force on 17 January 1997.

[2]    In his written submissions dated 20 November 2009, the appellant made it clear that what he wanted is to review the master’s decisions.

[3]      Includes a magistrate, the District Court, the Court of First Instance and the Court of Appeal : section 2 of CCCO.

[4]      Means a Justice of Appeal, a judge, a recorder or a deputy judge of the Court of First Instance : section 2 of CCCO.

[5]    See section 14(3) of the District Court Ordinance (Cap. 336) and section 38(2) of the High Court Ordinance (Cap. 4) respectively.

[6]    Which means the High Court : see Order 62, rule 1.

[7]     When CCCO was introduced, the Court of Final Appeal had yet to come into existence.  As to the law and practice of the Court of Final Appeal on costs in criminal cases, see paragraph 51 below.

[8]     Part II deals with defence costs in summary proceedings (section 3); where the defendant is not tried (section 4); in case of acquittal (section 5); in case of partial acquittal on multiple charge (section 6); on discharge after committal without a hearing (section 7); appeal from magistrate when the judge allows the appeal (section 8); where appeal is allowed by the Court of Appeal (section 9); where the Court of Appeal dismisses the appeal by way of case stated (section 9A, added in 2002); and on unsuccessful application by the prosecutor  for a certificate to the Court of Appeal or the Court of First Instance (section 9B, added in 2005).  The costs awarded to the defendant shall be a charge on the general revenue of recoverable as a civil debt (section 10).

[9]   Part III covers prosecution costs in summary proceedings (section 11); for indictable offences (section 12); where judge or the Court of Appeal dismissed unmeritorious appeal (section 13); where the Court of Appeal allows appeal by way of case stated (section 13A, added in 2002); and on unsuccessful application by the defendant for a certificate of the Court of Appeal or the Court of First Instance (section 13B, added in 2005).  The costs awarded to the prosecution shall be recoverable as a civil debt (section 14).

[10]  Part IV also gives the power to the court to deal with costs unnecessarily or improperly incurred (section 17) and the liability of legal or other representatives for wasted costs (section 18).

[11]   A magistrate may still fix the costs at a sum not exceeding HK$30,000 (sections 3(2) and 11(2)).

[12]    Such as the party and party basis, the common fund basis and the indemnity basis.

[13]  Which deals with time limits and extension of time.

[14]  See paragraph 28 above.