HKSAR v. C.D.F. COGHLAN

HCMA1004/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1004 OF 1998

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J U D G M E N T

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1. On 13th November 1997, the Appellant parked his motorcycle at Cotton Tree Drive opposite the Lippo Centre. He was summonsed for not displaying in a conspicuous place on that motorcycle a valid vehicle licence so that it was clearly visible on the left hand side of the vehicle. He entered a plea of not guilty and the matter went to trial.

2. On 21st September 1998, he was acquitted of the charge. The Appellant then applied for costs consequent upon the acquittal. The Magistrate entertained the application for costs and heard argument upon it. Having heard argument, the Magistrate ruled in these terms :

"Yes, having heard your submission, I exercise my discretion to refuse costs."

Subsequently at a hearing of an application for review in respect of the refusal to order costs for the Appellant, the Appellant was represented by his pupil - the Appellant being a barrister. The Magistrate had some doubts as to the propriety of the pupil representing his pupil-master in this manner, but nonetheless heard the review. Having heard a submission based on the time spent by the Appellant in pursuing his defence, the Magistrate declined to review himself as to his costs order. The Appellant now appeals the refusal to award costs.

3. The Respondent argues two main grounds :

i) that no order for costs was made by the Magistrate and therefore there is no order to appeal;

ii) that s.19(1) of the Costs in Criminal Cases Ordinance, Cap.492 provides for an appeal only where an order has been made awarding costs to a party but makes no provision for an appeal where no costs are awarded and therefore there is no statutory provision for an appeal against an order refusing costs.

4. To deal with the first question, Miss Ho argues that by declining to award costs, there was what is commonly referred to as "no order as to costs" and that therefore there is no order to be appealed. In fact the real situation is that the Appellant made an application for costs, that application called for an exercise of the judicial discretion of the Magistrate, and a determination by him as to whether to grant or not to grant the application. His decision was not to grant the application and he therefore made an order refusing the application. The practical effect was that the Appellant had no award as to costs, but the Magistrate did make an order.

5. In R. v. Recorder of Oxford, ex parte Brasenose College [1969] 3 All ER 428 at 431 Bridge J. said :

"The word 'order' in relation to legal proceedings in itself is ambiguous; clearly it may mean, perhaps, a linguistic purist would say that its most accurate connotation was to indicate an order requiring an affirmative cause of action to be taken in pursuance of the order, but it is equally clear that the word may have a much wider meaning covering in effect all decisions of courts."

6. I am satisfied that the decision not to award costs to the Appellant was an order of the Magistrate.

7. Is there provision for a defendant who is acquitted of an offence and who is not awarded costs to appeal that order?

8. The Appellant argues that there is no inherent jurisdiction in the High Court to hear an appeal from the Magistrates Court and accepts that the right is founded upon statute. With that I agree. Therefore, unless statutory provision exists enabling the appeal of an order, that a successful defendant in the Magistrates Court be not awarded costs, no appeal will lie and the Appellant will be without remedy as to that order.

9. On 1st July 1997, the Costs in Criminal Cases Ordinance, Cap.492 came into effect. Section 2 of the Ordinance applies to the Magistrates Courts. Section 19(1) of the Ordinance provides :

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

Section 19(3)(a) provides :

"(3) Where the order for costs which is the subject of an appeal under this section was made-

(a) by a magistrate the appeal shall lie to the Court of First Instance;"

It is clear that an order by a Magistrate to award costs is appealable to the Court of First Instance, but the Ordinance is silent as to whether an appeal lies in respect of an order not to award costs to a party.

10. The Respondent herein argues that since no specific provision is made in that Ordinance for an appeal in these circumstances, no appeal lies.

11. The Appellant argues that since the Ordinance is silent on this head, any statutory provision permitting an appeal of an order not awarding costs existing prior to the enactment of Cap.492 is still in force, and he is entitled to the benefit of that provision.

12. The Appellant argues that s.113(1) of the Magistrates Ordinance, Cap.227 gives him the statutory right to appeal that order; that the Magistrate's order refusing his costs was so inextricably connected with the trial that it was plainly an integral part of the criminal proceedings and he relies upon R. v. Wong Hing-yuk, Cri App No.282/98. And that since the right to appeal the order pursuant to s.113 of the Magistrates Ordinance is not expressly or impliedly repealed by the Costs in Criminal Cases Ordinance, the right to appeal that order still subsists.

13. As long ago as 1968, Huggins J (as he then was) ruled in Chan Chor v. The Queen, Cri App No.217/68 :

"Before me the Appellant has objected to the order for payment of costs and the question arose whether there was jurisdiction to interfere with that order on an appeal against sentence. However as an appeal would in any event have lain against that order under section 113 of the Magistrates Ordinance, Counsel for the Crown agreed that I should treat this appeal as if there had been an appeal against both orders."

Section 113(1) of the Magistrates Ordinance provides :

"Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge."

Huggins J in Chan Chor v. The Queen held that an order awarding costs fell within s.113(1). An order not awarding costs must also fall within that section.

14. I accept the case of R. v. Wong Hing-yuk which ruled that an order not awarding costs is an order in connection with the offence.

15. Therefore, prior to the enactment of the Costs in Criminal Cases Ordinance, I hold that the Appellant herein would have had a statutory right to appeal the order refusing his costs under s.113(1) of the Magistrates Ordinance.

16. The last issue is whether that right survives the enactment of the Costs in Criminal Cases Ordinance. Maxwell on Interpretation of Statute, 12th Edn. at p.191 states :

"A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favoured by the Courts...."

Later on at the same page :

"If therefore earlier and later statutes can reasonably be construed in such a way that both can be given effect, this must be done."

The Costs in Criminal Cases Ordinance deals exclusively with the award of costs to either the prosecution or defence in all courts in Hong Kong. Neither expressly nor by implication does it deal with orders of the court other than those it specifically sets out. Since the Ordinance does not purport to deal with an order not awarding costs, it cannot be held that it has repealed that part of s.113(1) of the Magistrates Ordinance that provides for an appeal of such an order refusing an award of costs, and the provision must still subsist.

17. An appeal from such order lies to this Court and the appeal is allowed.

18. Section 3(1)(c) of the Costs in Criminal Cases Ordinance gives the Magistrate the discretion to allow costs for an acquitted defendant. R. v. Kwok Moon Yan & Another [1989] 2 HKLR 396 sets out that costs should normally be awarded to an acquitted defendant unless there were positive reasons for making a different order and sets out what those positive reasons could be. Those reasons do not apply here and the refusal by the Magistrate was based upon his disapproval of the nature of the costs claimed by the Appellant. This is not a proper test for the award or otherwise of costs.

19. Section 3(2) of the Costs in Criminal Cases Ordinance provides that costs for an acquitted defendant in the Magistrates Courts shall not exceed $30,000 and that they should be ordered to be taxed if not agreed between the prosecution and the defendant.

20. That is the order the Magistrate should have made in this matter and I award costs to the Appellant here and in the Court below, to be taxed if not agreed.