R. v. Chan Kwong Yik

IN THE COURT OF APPEAL

1995, No. 179
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court) :

1. This is an application for costs.

2. On the 10th of last month, at the conclusion of the appeal against conviction, we gave judgment quashing the conviction, and doing so on the principal ground advanced by counsel for the appellant. Very properly, counsel for the appellant sought his instructions as to whether or not to seek the costs of the trial and the appeal. He gave her instructions not to make any such application. So she did not.

3. Subsequently, he had a change of heart when his solicitor contacted him about the matter and gave him some advice thereon. No criticism can be made against counsel, since she had sought instructions and acted on those which she received.

4. Now, in the case of R. v. Kwok Moon-yan [1989] 2 HKLR 396 at p.402 this Court said this :

"If there is to be an application for costs then that application should be made upon the judgment of the Court of Appeal being pronounced and in respect of all proceedings for which the order is sought. For the future counsel would be well advised to arm themselves with at least tentative instructions and, if the decision of the Court should come as a surprise to them, they should, if they consider an application for costs to be valid, ask for a short moment to take instruction. The Court will be loath to entertain applications made subsequent to the determination of an appeal."

5. That indeed is so. This Court is loath to entertain such applications. But we are not precluded from entertaining them. And in all the circumstances, we think that we ought to entertain this application.

6. Mr Saw for the prosecution very fairly informs us that had the application for costs been made at the appropriate time, he would not have resisted costs here and below. But he invites us not to entertain an application now.

7. Alternatively, he urges a course first raised by the bench, which is to award the appellant the costs below but not of the appeal: for the reason that the public expense generated by this application, necessitated by the appellant first deciding not to seek costs and then changing his mind, really cancels out his entitlement to the costs of the appeal itself.

8. That seems to us to be just in the circumstances. We make an order for costs in favour of the applicant in respect only of the costs below.