WONG TAK KEUNG v. HKSAR

FAMC No. 47 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 MISCELLANEOUS PROCEEDINGS NO. 47 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 421 OF 2002)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  This applicant was charged with drug trafficking.  He was tried in the District Court.  At his first trial he was convicted.  But the Court of Appeal quashed his conviction, and ordered a retrial.  He was acquitted at the retrial. 

2.  After the Court of Appeal handed down their judgment quashing his conviction and ordering a retrial, the applicant took out an application before them asking for his costs of the first trial, of the appeal to the Court of Appeal and of the costs application itself.  The Court of Appeal refused the applicant his costs of the first trial.  And they awarded him only 50% of his costs of the appeal and of the costs application.  They said that they dealt with costs in that way “[h]aving regard to the conduct of the applicant prior to the charge, to the original grounds of appeal, the success of the appeal and the basis of its success and the fact of the order of retrial”.  The applicant now seeks leave to appeal to the Court of Final Appeal against the Court of Appeal’s refusal to award him all the costs for which he had asked.

3.  He seeks such leave under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute, not under the “point of law of great and general importance” limb of that provision.  Within the framework of the relevant principles, costs are dealt with on the basis of a broad discretion.  In the absence of any controversy over the principles that govern the award or refusal of costs, it would take rare and exceptional circumstances indeed to warrant an appeal to the Court of Final Appeal on costs alone.  The present case is not attended by such circumstances.  Leave to appeal is therefore refused.