THE SECRETARY FOR JUSTICE v. CHENG SUNG TAK AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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JUDGMENT

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Introduction

1. In October 1996, seven defendants were tried in the District Court on various criminal charges. After the trial had been going on for a few days, prosecuting counsel realised that he had acted for some of the defendants at an earlier stage of the case. The case had to start again, with different prosecuting counsel.

2. The trial of the defendants resumed in April 1997. At the beginning of the resumed trial, the prosecution offered no evidence in respect of some of the charges which all of the defendants, save D3, faced. That meant that D6 and D7 took no further part in the trial, because the charges on which the prosecution offered no evidence were the only charges they faced. The trial then proceeded against D1-D5 on the remaining charges. The trial lasted until 9th May 1997. On that date, D1-D5 were convicted and sentenced to terms of imprisonment.

3. Counsel for D1-D5 then applied for the costs of the discontinued trial in October 1996. That application was opposed by the prosecution, but granted by the deputy judge. In this application for judicial review, the prosecution applies for judicial review of the award of costs for the discontinued trial in October 1996 in favour of D1-D5, who are the five Respondents to the application. The prosecution's case is that the judge did not have the power to make that order for costs.

The District Court's power to make orders for costs in criminal proceedings

4. It is well settled that the District Court does not have an inherent power to make orders for costs in criminal proceedings. The District Court only has such power to make orders for costs in criminal proceedings as are conferred upon it by statute: see Attorney General v. A Deputy District Court Judge [1991] 2 HKLR 507. Costs in criminal cases are now governed by the Costs in Criminal Cases Ordinance (Cap. 492). However, that Ordinance does not apply to the present case, because section 25 provides that it is not to apply to criminal proceedings in respect of offences committed before the Ordinance came into operation. The Ordinance only came into operation on 17th January 1997, i.e. well after the date of the offences which the defendants committed.

5. The only relevant Ordinance at the date of the offences was the Criminal Procedure Ordinance (Cap. 221)("the CPO"). The CPO permitted an award of costs by the District Court in favour of a defendant who had been acquitted (section 73A(1)), and in favour of the prosecution against a person who had been convicted (section 72(1)). However, the CPO did not permit an award of costs by the District Court in favour of a defendant who had been convicted. It follows that unless R1-R5 can be regarded as having been acquitted, the deputy judge did not have the power to make the order for costs which he did. None of that was disputed by Mr. John McNamara for R1-R4, or by R5 who appeared in person.

Were R1-R5 acquitted?

6. When this application for judicial review was heard on 13th November 1997, Mr. McNamara's short point was that R1, R2 and R4 should be regarded as having been acquitted when the prosecution offered no evidence against them on some of the charges they faced at the start of the resumed trial. Accordingly, section 73A(1) of the CPO gave the deputy judge the jurisdiction to make the order for costs which he did (save for the order for costs in favour of R3, because the only charge which R3 had faced in the discontinued trial was the same charge which he faced in the resumed trial). The same argument applied to R5.

7. When the prosecution offers no evidence against a defendant, a court has two options. The usual practice is for the judge to order that a verdict of not guilty be recorded. That is expressly provided for by section 51A of the CPO for trials on indictment. The recording of a verdict of not guilty is the invariable practice where the reason for offering no evidence is the prosecution's belief that there is not sufficient evidence to convict the defendant. However, such a direction may be inappropriate where, for example, the only reason why no evidence is offered is because the defendant pleads guilty to a more serious offence, and the prosecution takes the view that it is not in the public interest for there to be a trial on a minor offence to which the defendant has pleaded not guilty. In such a case, the Court simply directs that the charge or charges concerned be left on the file marked: "Not to be proceeded with without the leave of the Court or the Court of Appeal".

8. In the present case, it was not clear from the evidence which had been filed what order had been made when the prosecution offered no evidence against R1, R2, R4 and R5 on some of the charges at the resumed trial. Accordingly, at the hearing on 13th November 1997, I directed that a transcript be obtained of what was said at the beginning of the resumed trial, and that the application for judicial review should be adjourned sine die in the meantime. That record has now been obtained. It shows that neither of the two options open to the court was adopted. That was because, on the prosecution offering no evidence, the charges on which no evidence was offered were "withdrawn". That resulted in D6 and D7 being discharged from custody, and the case against R1-R5 proceeding on the other charges. It is not necessary for me to decide whether there is a statutory basis for the withdrawal of charges in the District Court, because the consequence of the deputy judge not directing that verdicts of not guilty be recorded on the charges on which the prosecution offered no evidence can only be that the defendants were not acquitted on those charges. All that happened was that those charges were not proceeded with. It follows that since the defendants were not acquitted, the deputy judge did not have the jurisdiction to make the order for costs in their favour which he did.

9. That is accepted by those advising R1, R2 and R4. When the transcript became available, they and R3 indicated, through their solicitors, their consent to the quashing of the orders for costs which the deputy judge had made in their favour. Accordingly, by consent, I make an order of certiorari quashing the order made by the deputy judge on 9th May 1997 requiring the prosecution to pay the costs of R1-R4 in respect of the discontinued trial between 14th and 28th October 1996. There is no distinction between their cases and that of R5. However, since R5 is still unrepresented, the prosecution has decided not to pursue the application for judicial review of the order for costs in her favour. Accordingly, in order to bring finality to these proceedings, the order which I propose to make on the application relating to her is that there be no order on the application, with no order as to costs.

10. In the interests of completeness, I should add that Ms. Phyllis Wong for the prosecution argued that section 73A(1) of the CPO should be construed as having permitted an award of costs by the District Court only in favour of a defendant who has been acquitted on all charges. It is no longer necessary for me to deal with that argument.

Costs of the application for judicial review

11. All that remains to be decided is what order for costs should be made in relation to the application for judicial review of the orders for costs in favour of R1-R4. I have received written submissions on this issue. Costs normally follow the event, though in this case the order which I make is that R1-R4 should pay to the Applicant her costs only of applying for leave to apply for judicial review of the orders for costs in favour of R1-R4, but that there be no order in respect of any costs incurred on or after 7th August 1997 (which was the date on which the notice of application for leave to apply for judicial review was filed). Had the transcript of what was said at the beginning of the resumed trial been sought and made available to those advising R1-R4 before the commencement of these proceedings, the prosecution would still have had to apply for leave to apply for judicial review, but once leave had been granted, R1-R4 are likely to have consented to the quashing of the orders for costs in their favour.