LEE CHING KAI v. HKSAR

FAMC No. 76 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 544 OF 2003)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  This applicant and a man named Leung were convicted in the District Court on a charge of conspiracy to forge documents.  The charge was particularised to allege that the documents concerned were forged “with the intention that [Leung] or another should use them to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice”.  Under caution the applicant admitted to the ICAC that he had participated in forging the documents but denied that he had done so with that intention.  His belief, he told the ICAC, was that the documents were for internal purposes only. 

2.  After the Court of Appeal had quashed Leung’s conviction on the basis that the judge “may have applied the wrong standard in assessing the burden of proof”, the applicant went to the Court of Appeal very much out of time.  In result the Court of Appeal quashed his conviction too, doing so on the same basis.  Counsel for the applicant asked the Court of Appeal to award the applicant his costs of the trial and of the appeal.  Without giving reasons, the Court of Appeal refused costs. 

3.  The applicant now seeks our leave to appeal to the Court of Final Appeal against that refusal of costs.  It is submitted on his behalf that it is reasonably arguable that the refusal constituted substantial and grave injustice.  Three arguments are put forward on his behalf in support of that submission.  Shortly stated these are that the Court of Appeal had:

(i)    departed from the normal rule that costs follow the event;

(ii)    deprived the applicant of a fair hearing by not giving reasons for refusing him his costs; and

(iii)   failed to treat him equally with Leung whom they awarded trial and appeal costs.

4.  Quite simply, the answer to the first argument is that there was good reason to deprive the applicant of costs, such reason being that he had by his admitted forgery brought suspicion upon himself.  Turning to the second argument, it is obviously to be inferred from the circumstances that the Court of Appeal’s refusal of costs was for that reason.  So, although it would have been better for the Court of Appeal to have stated that reason, their failure to do so provides no arguable basis for disturbing that refusal.  As for the third argument, the short answer to it is that Leung made no admission bringing suspicion upon himself. 

5.  For those reasons, there is no proper foundation for an appeal to the Court of Final Appeal against the Court of Appeal’s refusal to award the applicant his costs.  Accordingly leave to appeal is refused.