HKSAR v. TANG KA HUNG AND ANOTHER

HCMA 239/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 239 OF 2010

(ON APPEAL FROM ESS 37069/2008)

____________

_______________

J U D G M E N T

_______________

1.  The 1^st Appellant Tang Ka Hung is appealing against the order of the Magistrate Mr Wahab in refusing to award full costs of the proceedings in the Magistrate’s Court.

2.  Mr Anthony Butt, counsel here and below, is appealing against two personal wasted costs orders made by the Magistrate.

3.  The personal wasted costs orders against Mr Butt related to the dismissed application for permanent stay and application for recusal (and the review thereof) before the Magistrate.

4.  Miss Ching, for the Respondent, has not asked for costs against the 1^st Appellant on the dismissed stay and recusal applications in the event that the appeal by Mr Butt is successful. 

5.  As such, I do not see any conflict of interests between Mr Butt and the 1^st Appellant. 

6.  In the event, I treated the two appeals as separate cases but heard together, with Mr Butt acting in person, and as counsel in the 1^st Appellant’s case.  Ms Ching had no objection tothis course.

7.  Incidentally, as the 1^st Appellant is asking for full costs below in the Notice of Appeal, he is taken to be also appealing against the order of the Special Magistrate Miss J Ma in refusing the costs of the adjournment of the original trial (and the review on refusal of costs) by reason of late disclosure of unused materials by the Respondent.

8.  However, as the 1^st Appellant never asked for costs before the Principal Magistrate relating to the issue of witness summonses, Mr Butt is content not to pursue the matter now.

The facts

9.  The 1^st Appellant was charged with careless driving.  He knocked down a tunnel officer with his motorcycle at an exit of the Cross Harbour Tunnel on 8 June 2008.

10.  On 28 November 2008, the 1^st Appellant appeared in person for plea before the Principal Magistrate (Day 1).  The trial was fixed before Miss J Ma on 29 April 2009.

11.  On Saturday, 27 April 2009, the prosecution served on the defence a CCTV tape from the tunnel company as unused material.  The tape showed the scene of the accident, but it started about 1 minute late without showing theaccident itself.

12.  On the trial day of 29 April 2009 (Day 2), Mr Butt asked for discovery of the full tape, with an explanation for the incomplete tape.  Miss Ma granted the application and adjourned the trial, but she refused to award the costs of the adjournment, because the Appellant should have notified the Court earlier in order to facilitate listing another case for trial.  Mr Butt applied for a review of the costs order, and it was fixed to be heard on 4 September 2009.

13.  On 4 September 2009 (Day 3), Mr Butt submitted that the defence only received the tape on the afternoon of Saturday, 27 April, and the application for disclosure and adjournment was made at the earliest opportunity on Monday, 29 April.  The decision was reserved to 10 September 2009.

14.  Also on 4 September, Mr Butt applied before the Principal Magistrate for two witness summonses, against one Mr Yeung, who had told a friend of the 1^st Appellant that he saw a tape of the accident on YouTube, and one Mr Tang, the manager of the tunnel company, for the explanation of the incomplete tape.  The applications were granted.

15.  On 10 September 2009 (Day 4), Miss Ma dismissed the review of the costs of Day 2 with similar reasons.

16.  In the meantime, Mr Butt filed an application for permanent stay on the ground of non-disclosure of the entire tape.

17.  On 8 October 2009 (Day 5), Mr Wahab, the new trial magistrate, held a Pre-trial Review.  The Magistrate queried the application for stay.  He made the comment that by looking at the documents alone, the defence was complicating a simple matter and the case was getting out of control.  He said it would be alright to apply for stay if the 1^st Appellant were funding his own case, but not so if it were funded by the insurers as the appellant was troubled to come to court so many times.  He thought the defence lawyers were losing objectivity, and if they were not putting the rights of the 1^st Appellant first, they should be dismissed.

18.  Mr Butt had a conference with the 1^st Appellant and his instructing solicitor. Upon instruction, Mr Butt made an application that the Magistrate recuse himself on the ground that his prejudicial remarks had made the 1^st Appellant feel pressure not to pursue the stay application.  The application was refused, and the Magistrate intimated a wasted costs order against Mr Butt personally.

19.  During the PTR, the Magistrate also queried the two witness summonses granted by the Principal Magistrate and made it clear that he would not sign them.

20.  Subsequently, defence solicitors applied in writing to the Principal Magistrate directly and he signed the two witness summonses.

21.  On 23 October 2009 (Day 6), Mr Butt appeared before the Magistrate for a review of the refusal of recusal, and the application was also refused.

22.  On 27 November 2009 (Day 7), the trial commenced.  The stay application was heard first.  The grounds were:

(1)    A police officer noted down that he was informed by the tunnel company that there was no CCTV tape;

(2)    Mr Yeung said he saw a tape of the accident on YouTube;

(3)    A CCTV tape was disclosed two days before the scheduled trial but it did not show the accident itself;

(4)    The CCTV logbook did not include the entry for the tape;

(5)    The course of dealing with the tunnel company showed reluctance and delaying attitude in making disclosure and explanations.

23.  Mr Butt was driving at foul play and/or impropriety on the part of the tunnel company, and failure to investigate by the police resulting in late discovery of the tape.

24.  Mr Tang, manager of the tunnel company, gave evidence that the recording for the four CCTV cameras for each direction at each entrance/exit would only be turned on upon a report of accident, hence, the 1 minute delay in recording.  The logbook entries for other recordings showed short durations of a few minutes each, indicating the camera was not turned on all the time.

25.  The clip allegedly seen by Mr Yeung could no longer be seen on YouTube.  The prosecution tried the keywords “紅隧意外” (Hung Tunnel Accident) and so forth but there was no such clip on YouTube nor endorsement of removal.

26.  The application was dismissed, It took about two hours and finished just before lunch.  The Magistrate intimated a wasted costs order against Mr Butt personally.  The trial proper was adjourned to another day.

27.  On 11 December 2009 (Day 8), the trial resumed.  The injured tunnel officer gave evidence.  He was deployed to that exit of the tunnel because there was another accident earlier involving a taxi.  However, he did not know how he was knocked down, nor could he remember anything at all.  Another driver behind the motorcycle gave evidence, and said the 1^st Appellant overtook his car and cross the lane in the tunnel before the accident.  He was driving slowly, at about 55 to 60 KPH, because his wife was pregnant, and the 1^st Appellant was faster than him.

28.  The Magistrate found no case to answer as there was no evidence on what happened at the time of the accident, and the overtaken driver’s evidence on speed was an estimate only.

29.  Mr Butt asked for full costs of the proceedings upon acquittal.    The Magistrate adjourned the hearing on costs to another day.

30.  On 18 January 2010 (Day 9), the hearing on costs was further adjourned as the Magistrate had no time to deal with the matter.

31.  On 1 March 2010 (Day 10), the hearing on costs was again adjourned because the prosecution wanted to put in written submissions.

32.  On 30 March 2010 (Day 11), the Magistrate found Mr Butt to be conducting senseless advocacy, and made the following order for costs:

(1)    The respondent do pay the 1^st Appellant’s costs for 28 November 2008 (plea day) and 11 December 2009 (trial);

(2)    Mr Butt do pay the Respondent’s costs of and incidental to the applications for stay and recusal.

Relevant provisions

33.  Section 3(1)(c) of the Costs in Criminal Cases Ordinance (Cap. 492) provides that:

“(1) Where-

(a) …

(c) a magistrate dealing with a summary offence or any offence summarily dismisses the information or complaint or acquits the defendant;

(d) …

the magistrate may order that costs be awarded to the defendant.”

34.  Section 17 of Cap. 492 provides that:

“Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings.”

35.  Section 18 of Cap. 492 provides that:

“(1) In any criminal proceedings a court or a judge may order the legal or other representative concerned to meet the payment of any wasted costs or any part thereof.

(2) No order under subsection (1) shall be made unless the legal or other representative concerned has been given a reasonable opportunity to appear before the court or the judge and show cause why the order should not be made.

(3) When determining whether or not to make an order under subsection (1), the court or the judge shall, in addition to all other relevant circumstances, take into account the interest that there be fearless advocacy under the adversarial system of justice.

(4)     …”

36.  Under section 2 of Cap. 492, “wasted costs” means:

“any costs incurred by a party to the proceedings-

(a) as a result of-

(i) any seriously improper act or omission; or

(ii) any undue delay or any other serious misconduct, on the part of any representative or any employee of a representative; or

(b)     which, in the light of any such act, omission, delay or misconduct occurring after they were incurred, the court considers it is unreasonable to expect that party to the proceedings to pay.”

37.  Section 19 Cap. 492 provides that:

“(1) Where a court or a judge has made an order that costs be awarded to any of the parties to the proceedings any of such parties may appeal against that order.

(2) A legal or other representative who has been ordered to meet the payment of any wasted costs or any part thereof may appeal against that order.

(3)     …”

38.  Rule 4(2)(a) of the Costs in Criminal cases Rules (Cap. 492A) provides that:

“(1) For the purposes of section 19 of the Ordinance-

(a) any of the parties to the proceedings where a court has made an order that costs be awarded; or

(b) a legal or other representative against whom the wasted costs order is made,

can appeal-

(i) in the case of an order made by a magistrates’ court, to the Court of First Instance; and

(ii) in the case of an order made by the District Court or the Court of First Instance, to the Court of Appeal

(2) Subject to this rule-

(a) Order 55 of the Rules of the High Court shall apply to an appeal to the Court of First Instance; and

(b)   Order 59 of those Rules shall apply to an appeal to the Court of Appeal, with such modifications as may be necessary to make the same applicable to the circumstances of the appeal.”

39.  And O. 59, r. 3(1) of the Rules of the High Court (Cap. 4A) provides that:

“(1) An appeal to which this Order applies shall be by way of rehearing and must be brought by originating motion.”

Relevant legal principles

40.  When a defendant had been brought to trial upon particular charges and was then found not guilty, he should normally be compensated out of public revenue for the costs incurred in defending those charges.  In considering whether, despite that general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must look at his conduct generally, so long as such conduct was relevant to the charges faced.  Examples of such reasons are: (a) the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is (Tong Cun Lin v HKSAR [2000] 1 HKLRD 113, 117C – G per Litton NPJ).

41.  In R v Johnson Partnership Solicitors [2005] PNLR 12, Scott Baker LJ observed at para. 8 the followings:

“In the relevant passage in Archbold, at para. 6.41, reference is made to guidance approved in Re: Mintz (Wasted Costs Order) (The Times, July 16, 1999) by this Court. We refer to the material aspects of it:

‘(a) there is a need for any judge or court intending to exercise the jurisdiction to formulate carefully and concisely the complaint and the grounds upon which such an order might be made. The provisions are draconian and, as with contempt proceedings, the grounds must be clear and particular. [That was not done in this case]; (b) Where necessary, a transcript of the relevant part of the proceedings under discussion should be available.’

Again, that, regrettably, was not done in this case. (c) is not material for present purposes, but (d) is:

‘A three-stage test was recommended.  (i) Had there been an improper, unreasonable or negligent act or omission?  (ii) If so, had any cost been incurred by any party in consequence thereof?  (iii) If so, should the court exercise its discretion to disallow or order the representative to meet, the      whole or any part of the relevant costs and, if so, what specific sum was involved?”

42.  In Medcalf v Mardell & ors [2003] 1 AC 120 (HL), Lord Hobhouse observed at p. 143H-144B:

“… It is the duty of the advocate to present his client’s case even though he may think it is hopeless… The position is different if the court concludes that there has been improper time wasting by the advocate or the advocate has knowingly lent himself to an abuse of process. However, it is relevant to bear in mind that if a party is raising issues or is taking steps which have no reasonable prospect of success or are scandalous or are an abuse of process, both the aggrieved party and the court have powers to remedy the situation by invoking summary remedies – striking out; summary judgment; peremptory orders, etc. The making of a wasted costs order should not be the primary remedy; by definition it only arises once the damage has been done. It is a last resort.”

Submissions for Mr Butt’s case

43.  Mr Butt submitted that:

(1)    There was no application for wasted costs on the part of the Respondent;

(2)    The Magistrate failed to formulate precisely the grounds of complaints for wasted costs.

44.  On stay, Mr Butt submitted that the application was proper:

(1)    The incomplete clip lent itself to reasonable query;

(2)    It was based on evidence of defence witness notwithstanding he was is believed by the Magistrate upon cross-examination;

(3)    The prosecution had to call rebuttal evidence on the procedure of the normal operation of the CCTV system.

45.  On recusal, Mr Butt submitted that the Magistrate’s comments on the propriety of the stay application before listening to the evidence would give a fair-minded and informed observer an impression that the 1^st Appellant would not receive a fair hearing before the Magistrate.

Submissions for the 1^st Appellant

46.  Mr Butt repeated the propriety of the applications on stay and recusal as above.

47.  On the other hearings:

(1)    The adjournment before the Special Magistrate for production of the tape was made at the earliest opportunity;

(2)    The other adjournments were not due to any fault on the part of the 1^st Appellant.

Discussions

48.  The gist of Miss Ching’s argument was that Mr Butt should not have proceeded with the stay application upon receiving the explanation in Mr Tang’s witness statement, and the unavailability of the alleged clip seen by Mr Yeung on YouTube.  Miss Ching submitted that in the absence of the production of the tape as real exhibit, Mr Yeung’s evidence was inadmissible hearsay.

49.  As to recusal, Miss Ching submitted that the Magistrate was merely conducting case management in streamlining the case.

50.  Wasted costs against the legal representative personally is a draconian order.  It should only be made on the ground of serious improper act or omission, or serious misconduct, not mere lack of wisdom, discretion or valour.

51.  I note that Mr Butt was acting on client’s instruction in making the stay application, but nevertheless, he must assess the merits of the case.  No doubt, if the YouTube tape were available and found to be a tape from the tunnel company, the imputations on the tunnel company, as to which the victim was its employee, are very serious.  However, it was not available.  I am not going to resolve the issue of hearsay for the present purpose without learned arguments.  Suffice it to say that in the circumstances, Mr Butt should have at least enquired with YouTube as to possibility of removal of the clip without traces, if not the recovery of it.  That had not been done.  Given the authorities on the formidable burden to show that a fair trial could no longer be possible, the application was unlikely to succeed on the state of the evidence available.  The Magistrate could well have made an order for costs unnecessarily or improper incurred on the part of the 1^st Appellant upon refusal of the application.

52.  That said, I do not consider that Mr Butt, having acted on instructions from the 1^st Appellant, was guilty was serious improper act or serious misconduct, as to which, he personally rather than the 1^st Appellant should be responsible for the costs.

53.  Hence, the wasted costs order against Butt personally on the stay is set aside.

54.  As to recusal, case management in criminal proceedings should be approached with care, especially when the matter is fact sensitive depending of credibility of the witnesses. 

55.  Be that as it may, the Magistrate did not forestall against the stay application per se, as he said it would be alright if the 1^st Appellant were funding the application himself (notwithstanding that I do not really see the difference). Hindsight would have counselled more circumspect in the comments, but the Magistrate did not delve into evidence ultimately depending on credibility of the witnesses.  The 1^st Appellant was not actually pressurized as he did proceed with the application.  Given the merits of the application, it could not be said that an informed and objective bystander would have concluded apparent bias.

56.  Notwithstanding that, it would be a far cry to find counsel guilty of serious misconduct for making the application for recusal.  Hence, the wasted costs order against Butt on recusal is also set aside.

57.  The costs of the plea day (Day 1) and trial (Day 8) awarded by the Magistrate should stand.

58.  The costs of the adjournment before the Special magistrate (Days 2, 3 and 4) should be to the 1^st Appellant.

59.  As Miss Ching did not ask for costs on the dismissed stay and recusal applications, there be no order as to costs thereon (Days 5, 6 and 7).  The PTR was held mainly for the stay but was occasioned with the application for recusal, hence, also no order as to costs.

60.  The adjournment of the costs hearings (Days 9 and 10) were necessitated because the case was not reached.  In principal, adjourned cases should be accorded priority.  There being no reason to the contrary, the 1^st Appellant should be awarded costs of those 2 days.

61.  As to the costs hearing itself (Day 11), the issues involved both the personal wasted costs and the 1^st Appellant’s costs upon acquittal.   The Notice of Appeal only prayed for discharge of the personal costs orders against Mr Butt, and costs below be in favour of the 1^st Appellant.  Judging from the appeal, the time apportionment between the personal wasted costs orders and the 1^st Appellant’s own costs should be 2/3 and 1/3.  The 1^st Appellant is substantially successful on the appeal (as he did not get costs of the failed stay and recusal applications), he should be entitled to 11/8 of those costs upon the 1/3 apportionment.

Conclusion

62.  The wasted costs orders against Mr Butt personally are discharged.

63.  The 1^st Appellant is awarded costs below as follows:

(1)    Plea day (Day 1) as ordered by the Magistrate;

(2)    Adjournment of the trial and costs of the review and decision on costs before the Special Magistrate (Days 2, 3 and 4);

(3)    Trial (Day 8);

(4)    Adjourned the costs hearing (Days 9 and 10);

(5)    8/11 of 1/3 of the costs hearing (Day 11).

Costs on appeal

64.  Both the 1^st Appellant and Mr Butt are entitled to the costs of the appeal as prayed for, upon the same apportionment of 1/3 and 2/3.  Mr Butt is wholly successful and should be entitled to full costs of his portion.  The 1^st Appellant is substantially successful and be entitled to 8/11. 

65.  The Taxing Master should avoid any double counting between Mr Butt and the 1^st Appellant.