CHAN TIT SHAU v. HKSAR

FACC No. 8 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2004 (CRIMINAL)

(ON APPEAL FROM HCCC NOS. 181, 205 AND 308 OF 2002)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1.  At the conclusion of the hearing we announced that, for reasons to be handed down later, we allowed the appeal so as to remit the question of the appellant’s costs of the preliminary hearing and of the criminal trial to Pang J for him to deal with those costs after full argument thereon.  The remitter, as we announced, does not encompass the costs of the failed judicial review proceedings.  We now hand down our reasons, they being those given by Mr Justice Chan PJ for the Court.  As for the costs of the proceedings before the Appeal Committee and of this appeal, the respondent having conceded that the appellant should be awarded the same, we awarded the appellant such costs.

Mr Justice Chan PJ:

2.  The appellant was tried together with six other defendants before a judge and jury in the Court of First Instance.  He was charged jointly with the first three defendants in the case with one count of conspiracy to defraud, contrary to Common Law and s.159C(6) of the Crimes Ordinance, Cap. 200.  The others also faced different counts, either jointly or individually.  At the end of the trial which lasted 84 days, only two of the defendants were convicted of only one count; the others including the appellant were all acquitted of the other counts.  The appellant and those other defendants who were acquitted applied for costs under s.5 of the Costs in Criminal Cases Ordinance, Cap. 492.  This was refused by the trial judge (Pang J).  The appellant appeals to this Court pursuant to leave granted by the Appeal Committee.

3.  For reasons which will become apparent, it is not necessary to go into the facts of this case in detail.  Suffice it for the purpose of this appeal to summarize the prosecution case against the appellant as follows.

4.  This case arose upon the discovery of the construction of substandard pile foundations of two blocks in a Home Ownership Scheme building project at Tin Shui Wai which was owned by the Housing Authority.  Quite a large number of the piles used were found to be shorter than the lengths specified in the construction contract and also not driven to the designed depth.  This had resulted in the tilting of the two blocks of buildings making it impossible to operate the lifts inside.

5.  The first three defendants were staff of Franki Contractors Ltd (later known as B + B Construction Co. Ltd), the contractor responsible for the construction of the foundations.  The other three defendants were staff of Hsin Yieh Architects & Associates Ltd, the contract manager of the project.  The appellant (who was charged as the 8^th defendant) was a geotechnical engineer of Joseph Chow & Partners Ltd, the geotechnical consultant of the project.  The prosecution alleged that the concealment of the substandard piles and piling works was made possible by means of a registered structural engineer report (“RSE report”) which was relied on by the contracting parties.  This report was compiled by the first three defendants and reviewed by the appellant.  It transpired that the various test data and calculations upon which the report was based had been tampered with and manipulated, contrary to the contract specifications, rendering the report inaccurate.  The report was however approved by the appellant.

6.  The case against the appellant was that given his position and experience, he must have known that the data and calculation records had been tampered with and manipulated.  He was either negligent in the performance of his duties or was involved in the conspiracy with the first three defendants to defraud the Housing Authority and the contract manager.  The prosecution argued that the only reasonable inference that could be drawn was that it was the latter.  The appellant did not give evidence at the trial but called two expert witnesses to challenge the prosecution experts’ findings and conclusions.  The jury acquitted him by a unanimous verdict.

7.  One of the grounds of appeal against the trial judge’s refusal of the appellant’s application for costs is that the judge had wrongly deprived him of an opportunity to address the court. 

8.  It transpired that at the end of the trial after the jury had delivered their verdicts and the formal discharge of the acquitted defendants, counsel for those defendants who were acquitted applied to the judge for costs.  The appellant also made a similar application pointing out to the judge that his costs covered those for the committal proceedings and the judicial review proceedings which he had instituted to challenge the order for committal.  The judge then inquired of prosecuting counsel what his position was.  Counsel indicated that he was instructed to oppose the applications, but that he did not wish to be heard.  Thereupon the judge immediately said:

“I have an application for costs by the first, second, sixth, seventh and eighth accused.  Having the conduct of this case over the last 80 plus days, I take the view that this is a case where each of the applicants hereby for costs has brought suspicion upon themselves.  That being the case, the applications for costs are refused.”

9.  It is quite clear from the transcript that there was no opportunity for counsel and the appellant to address the court in support of their applications.  It might be said that counsel acting for the other acquitted defendants were no doubt familiar with court procedures and probably also did not wish to make any submissions to the court: for if they had wished to do so, they would have addressed the court either at the time of their applications or after prosecuting counsel had indicated that he opposed their applications, albeit he did not wish to be heard; but certainly when the judge purported to make a ruling without hearing them, they should have reminded the judge that they had not been heard and should have insisted on their rights.  But the appellant did not have the benefit of legal representation at the trial.  He might not have been in a position to know whether and when he could address the court.  For whatever reasons, possibly because of the prosecution’s indication not to make any submission and the absence of any attempt by counsel for the other acquitted defendants to address the court, the judge overlooked the necessity to hear the appellant before he rejected his application.

10.  It is of fundamental importance that the rules of natural justice must be strictly observed in court proceedings.  The right to be heard is protected under the Basic Law.  The failure to abide by these rules in the present case is a departure from accepted norms to the prejudice of the appellant.  Mr I C McWalters for the prosecution quite fairly and properly conceded this.  On this ground alone, the judge’s order must be set aside.  That being the case, it is not necessary to deal with the other grounds of appeal relied on by the appellant in his written submissions.

11.  The appellant however argues that the costs of the judicial review proceedings which he had unsuccessfully instituted to quash the magistrate’s order committing him for trial should also be included in the costs which he is seeking to recover and that this question should also be remitted to the trial judge for consideration.

12.  This matter is not within the ambit of the present appeal.  The leave to appeal granted by the Appeal Committee is limited to seeking a remitter to the trial judge to consider, after full arguments, the question of costs of the preliminary hearing and the criminal trial.  It does not include the question of costs in the failed judicial review proceedings.  We do not think it is open to the appellant to raise this argument.  Further, there was an existing costs order made by a High Court judge against the appellant in a separate proceeding and hence the trial judge has no power to revisit such order or make a fresh order for costs.  The costs of the failed judicial review proceedings therefore cannot be regarded as “preliminary or incidental” to the criminal proceedings before the trial judge (see s.15 of the Costs in Criminal Cases Ordinance).

13.  The appeal must therefore be allowed and the appellant’s application for costs should be remitted to the trial judge for further consideration.  For the avoidance of doubt, the costs to be dealt with by the judge do not include the costs of the failed judicial review proceedings instituted by the appellant.  On the prosecution’s concession, we also order that the appellant have his costs of the proceedings before the Appeal Committee and of this appeal.