ATTORNEY GENERAL v. LAM SAU KI

IN THE COURT OF APPEAL

1991, No. 442
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This application is confined within a very narrow compass. The question which we are called upon to decide is whether or not the Court has the power to award costs in favour of the Respondent in an appeal by way of case stated, where the trial judge was held to commit a number of errors in law. The Crown does not dispute the Respondent's entitlement to costs should there exist a power to grant them. It is, however, submitted on behalf of the Crown that the Court of Appeal has neither inherent nor statutory power to grant costs. Indeed, as Jones, J., said in The Attorney General v. A Deputy District Court Judge [1991] 2 HKLR 507 at 510: "Having considered the authorities, I am quite satisfied that the power to award costs in criminal cases depends entirely upon statute". In another case, The Queen v. MAK Yuet-hang [1990] 1 HKLR 121, I, sitting in the Court of Appeal, held that this Court had no inherent jurisdiction to award costs: vide P.123. A number of statutory provisions are relied on by the Respondent in this application, namely, S.84(c) (i) of the District Court Ordinance, Cap. 336, S.13(3) and (4) of the Supreme Court Ordinance, Cap. 4, and S.73A, Criminal Procedure Ordinance, Cap. 221. We have considered these provisions. Suffice it to say that, in our views, none of the statutory provisions are of any assistance to his application.

2. In our judgment, this Court is not empowered to grant the application for costs of this appeal.

3. The application for costs is therefore refused.