HKSAR v. SHUM MAN FAI

CACC 338/2019

[2022] HKCA 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 338 OF 2019

(ON APPEAL FROM HCCC NO 87 OF 2019)

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D E C I S I O N   O N   C O S T S

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Hon Macrae VP:

1.  On 10 February 2021, we allowed the appellant’s appeal against his conviction for manslaughter, set aside his sentence and declined to order a retrial. The appellant, who was legally aided at both trial and appeal, subsequently applied for the costs of the proceedings, which included his legal aid contribution in respect of the costs of the trial, namely HK$17,412; and his legal aid contribution towards the costs of the appeal, namely HK$50,643. He also applied for the costs incurred by him on a private basis in respect of two legal visits whilst in custody, two bail applications before a magistrate, a bail application before the High Court and the committal proceedings from the magistracy to the High Court.

2.  The respondent does not object to the appellant being granted the costs of his appeal, but does object to his being granted any of the costs of, and incidental to, his trial, on the basis that he brought suspicion upon himself.

3.  In the course of the Court’s judgment, it was noted that the CCTV evidence provided detailed footage of events and the interaction between the appellant and the deceased up to the moment the deceased fell against the wine rack outside the wine shop and subsequently disappeared from view.  For that reason, and to that extent, the Court considered it was in exactly the same position as the jury in interpreting the actions of the appellant and the deceased in Episode 1, and much of Episode 2^[1]. The Court also found, and the respondent no longer takes issue with this, that the deceased was the initial aggressor in both Episodes of the incident.

4.  Since that was the Court’s finding, which was derived from the CCTV evidence, the room for saying that the appellant brought suspicion upon himself at trial would seem to us to be very limited, particularly when he immediately and repeatedly told the ambulance men and the police at the scene that he was acting in self-defence.  This was not a case where the prosecution could be said to have been taken by surprise by the defence that was mounted at trial.

5.  In addressing the issue of re-trial, the Court described the facts of the case as^[2]:

“… on any view, somewhat unusual. The appellant was not out looking for trouble; nor when speaking to the deceased did he provoke it; and nor did he start the fight. Indeed, he expressly told the deceased he did not want to have a fight with him. He might even on one view be said to have been acting gallantly by getting out of his car and remaining at the scene following PW1’s scream. He was not the initial aggressor in either episode of violence.”

There may have been a valid issue for the jury to decide, but that does not mean that the appellant brought suspicion upon himself either by his conduct or the way his defence was conducted.

6.  I have concluded that the appellant should be granted his costs both in respect of the appeal and the trial.  Accordingly, he should have his legal aid contributions both in respect of the appeal and the trial.

7.  I would also grant the appellant his costs incidental to the trial, subject to them being taxed if not agreed.  The reason for this is that the fees of the appellant’s solicitor are sometimes as much as four times the costs of counsel.  There may be good reason for this, but that is a matter that can be resolved in taxation.

8.  Accordingly, I would make an order that the appellant be paid the costs of his appeal and trial, namely, his legal aid contributions (HK$50,643 and HK$17,412 respectively).  I would also make an order that he be paid his costs incidental to trial, namely, HK$108,000, to be taxed if not agreed.

Hon McWalters JA:

9.  I agree with the reasons for granting costs and the order proposed by Macrae VP.

Hon Zervos JA:

10.  I do not propose to examine in great detail the relevant legal principles that apply when deciding whether to grant costs to a successful appellant.  Those principles are well known.

11.  I do not disagree with the decision to award the appellant his costs in respect of the appeal and the trial.  However, I am unable to agree that the appellant did not bring suspicion upon himself.  I would exercise the discretion differently to what has been stated and would grant the applicant his costs on the basis that costs follow the event in light of the reasons of this Court in quashing the conviction.

12.  Li CJ in Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, at [16], explained that the notion of a defendant bringing suspicion upon himself was not limited to his conduct during the investigation and at trial but also included conduct which formed part of the basis for the charge or charges he faced. 

13.  I consider the prosecution was properly brought against the appellant because in my view the CCTV evidence clearly revealed there was an issue as to whether he had used unreasonable and excessive force in the fight that he had with the deceased.

14.  I should also add that during the course of the trial the appellant and the then girlfriend of the deceased, who was the former girlfriend of the appellant, both gave evidence that the deceased kicked the appellant but that was contradicted by the CCTV evidence and the credibility of both of them on this aspect of their evidence was put in issue at trial. 

15.  It is for these reasons I cannot agree that the appellant did not bring suspicion upon himself.

Hon Macrae VP:

16.  Accordingly, the Court makes the order in the terms set out at [8] above.

[1] Judgment, at [22].

[2] Ibid., at [48].