CAPACIOUS INVESTMENTS LTD. v. SECRETARY FOR JUSTICE

HCA5551/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5551 OF 1999

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J U D G M E N T

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1. At all material times until 20 December 1996, the plaintiff was the registered owner of various Lots of land in the New Territories. Pursuant to powers delegated to him, the Principal Government Land Agent made an order under section 13(1) of the Roads (Works, Use and Compensation) Ordinance, Cap.370 ("RWUCO") directing, inter alia, that the Lots be resumed with effect from 20 December 1996. Notice of the said resumption was published in the Government Gazette as Government Notice No.4211 on 19 September 1996. The Notice was also affixed on or near the land on 19 September 1996. The Notice states, inter alia :

"Any person entitled to compensation under the Ordinance may serve a written claim upon the Secretary for Transport before the expiration of one year from the date of resumption."

Pursuant to the said resumption, on 20 December 1996 the said Lots reverted to and became vested in the Government of Hong Kong (now the Government of The Hong Kong Special Administrative Region).

2. By a letter dated 6 November 1996 ("the Offer Letter") issued by the District Lands Office, Tuen Mun ("DLO") on behalf of the Director of Lands, the Government, inter alia, states in the following terms :

"... Your land will revert to the Government on the 20th day of December 1996.

3. Under the provisions of the Ordinance, you have a right in these circumstances to claim compensation but not until your land has actually been resumed. In order to expedite payment to you, it has always been Government practice to make an offer of compensation prior to the date of resumption. Subject to the Legal Advisory and Conveyancing Office (Senior Solicitor) being satisfied as to your entitlement to the compensation ... the Government hereby offers you the sum of $21,409,596.00 calculated at the rate of $414.00 per square foot, in full and final settlement of all and any claims which you may have in respect of the resumption of the above mentioned land.

4. If you wish to accept this offer, please sign the attached Acceptance Letter ...

5. ... The Government will use its best endeavours to expedite the payment of compensation, subject to the requirements set out below, but accepts no responsibility for delays howsoever caused.

...

10. Once the Government is satisfied that you are entitled to compensation, the Legal Advisory and Conveyancing Office (Tuen Mun) will draw up an Agreement as to Compensation and Indemnity for your execution. The most important terms of such an agreement are as follows :-

(i) Acceptance of the said sum of $21,409,596.00 as full and final settlement of all and any claims which you may have in respect of the resumption.

...

(iv) You will not make any claim for compensation to the Secretary for Transport or to the Lands Tribunal under the provisions of the Ordinance.

11. The Government will not pay any compensation monies until the Agreement as to Compensation and Indemnity has been executed, that it is satisfied it is obtaining a proper receipt for the compensation, a discharge from its statutory obligations and a waiver of your rights under the Ordinance.

12. In the event that you do not accept this offer or withdraw your acceptance on or before the reversion date, you may, in accordance with the provisions in section 29 of the above Ordinance, submit a claim for compensation to the District Lands Officer, Tuen Mun, who will be acting on behalf of the Secretary for Transport."

Attached to the letter was an Information Leaflet entitled : "How to receive compensation for agricultural land resumed by the Government".

3. The Offer Letter was originally sent by DLO to an old address of the plaintiff, as a result of which the plaintiff only received the letter on 16 December 1996, four days before the resumption. (While the plaintiff has reserved all its rights in respect of such delay, nothing turns upon it for the purposes of the present proceedings.)

4. After receiving the Offer Letter, the plaintiff instructed Messrs Lawson David & Sung ("LDS"), surveyors and valuers, to represent it in dealing with the Government in relation to the said offer.

5. It was not until one year later, by letter dated 17 December 1997, that LDS wrote to DLO pointing out alleged discrepancies in the registered areas of the Lots as stated by DLO, which LDS claimed had resulted in the registered area being understated, and concluded :

"In the light of the above, we are pleased to submit a compensation claim in the amount of HK$22,672,296.00 calculated at the rate of HK$414.00 per sq.ft. but excluding any interest on compensation in full and final settlement of our client's right and claims under the Road (Works, Use and Compensation) Ordinance (Cap.370). Please note that this sum does not include any legal expenses and the cost of remuneration for our professional work in connection with the subject claim. All interests accrued shall also be paid to our Client."

By return, DLO explained that there were in fact no discrepancies, which explanation was accepted by LDS.

6. By letter dated 4 February 1998 to DLO, LDS stated :

"We would like to inform you that our client is prepared to accept the compensation as mentioned in your offer letter dated 6th November 1996 in the sum of HK$21,409,596.00 excluding the interest on compensation, in full and final settlement in respect of the resumption."

7. On 10 February 1998, Mr Tsui of LDS telephoned Mr Wong of DLO, and Mr Wong informed him that if the plaintiff was going to accept the sum offered, the acceptance letter should be signed and returned to the Government; further, that any question as to interest would have to be referred to LACO for its advice.

8. Under cover of a letter dated 16 February 1998 to DLO, LDS returned to DLO the Acceptance Letter duly signed by the plaintiff. The Acceptance Letter reads simply :

"I/We accept the offer and agree to all the terms as stated in the Offer Letter dated 6 November 1996."

However, in the covering letter of 16 February 1998, LDS stated, inter alia :

"Our client's acceptance of the compensation as mentioned in your offer letter dated the 6th November 1996 in the sum of HK$21,409,596.00 is completely without prejudice to their claim for interest thereon under the relevant provisions of the Roads (Works, Use and Compensation) Ordinance, Cap.370 and the Crown Lands Resumption Ordinance, Cap.124, and in particular, our client's entitlement to the interest under Section 17 of Cap.124. Your attention is also drawn to Section 16A(1)(b) of Cap.124.

Kindly arrange the release of payment for our client's collection as soon as practicable."

9. By letter dated 30 March 1998, Legal Advisory and Conveyancing Office ("LACO") wrote to the plaintiff, inter alia, in the following terms :

"I refer to the letter dated 6.11.1996 addressed to you by the Director of Lands ... in connection with the resumption of the above lots. I understand that you have accepted the terms contained in the said letter. You will appreciate that before compensation can be paid I require to be satisfied that you have a good title to the above lots."

10. Over the next few months, further correspondence ensued in relation to the plaintiff attempting to prove its title to the Lots concerned.

11. Then came what Ms Li described as a "bolt from the blue", in the form of a letter dated 14 July 1998 from DLO to the plaintiff, inter alia, in the following terms :

"I refer to your letter ... dated 16.2.98 and the acceptance letter signed by your client ...

2. Legal Advisory and Conveyancing Office (LACO) of our office advised that the acceptance made by your client on 4.2.98 is ineffective on the following grounds:- (1) the offer had lapsed due to the lapse of reasonable time after the making of the offer; (2) your letter dated 16.2.98 mentioned that the acceptance was made WITHOUT prejudice to the 'Claims' of interest. It is a qualified acceptance; hence it constitutes a counter offer.

3. In this regard, please refer to Section 28 of Cap.370 in which it is provided that the right to claim for compensation shall be barred if the claim is not served upon the Secretary for Transport before the expiration of 1 year from the date of reversion though such period may be extended upon an application to the Lands Tribunal. The counter offer is arguably a claim initiated by your client. As one year had lapsed after the date of reversion (i.e. 20.12.96) and there is not any order for extension, the right to claim compensation by your client is barred.

4. In this circumstance, our office will issue a fresh offer to your client. Please make it clear to your client that ... the sum offered is meant to be full and final settlement of all 'Claims' in respect of the resumption of the captioned lots."

12. By letter dated 23 July 1998, DLO did make a fresh offer to the plaintiff, offering the sum of $21,409,596 "in full and final settlement of all claims, costs and demands including interest and professional fees which you may have ... arising out of or in connection with the resumption of the said land under the Ordinance or otherwise". (I mention this letter in order to complete the history of the parties' dealings : it is not in issue in these proceedings, which concern only the Offer Letter dated 6 November 1996.)

13. Finally, by letter dated 22 December 1998 to the plaintiff's solicitors, LACO stated, inter alia, as follows :

"I was given to understand that your client is still not agreeable to accept the sum of HK$21,409,596.00 as full and final settlement of all claims that your client may have against the Government in respect of the resumption of the above lots.

In order that compensation may be released to your client as soon as possible in the event your client shall accept the offer from the Government ... I am prepared to proceed with title checking in the meantime."

(Further months of correspondence followed this in relation to the discharge of a charge which had been registered against some of the Lots, which matter is also not relevant to these proceedings.)

14. On 1 April 1999, the plaintiff lodged the present proceedings. The Statement of Claim is, inter alia, in the following terms :

"11. By reason of the matters aforesaid, the Plaintiff says that a binding agreement ('the Agreement') was reached between the Government and the Plaintiff :-

(a) on the amount of compensation, in the sum of HK$21,409,596.00, to be paid to the Plaintiff in respect of the resumption of the Properties; and

(b) that the amount so agreed shall be without prejudice to the Plaintiff's claim for interest under the provisions of the Ordinance and ... the Lands Resumption Ordinance, Cap.124.

...

15. (a) Further, on its true construction the said Offer was an offer to compensate the Plaintiff in respect of all the claims that it may seek to recover from the Government for the matters set out in the first column of Part II of the Schedule to the Ordinance. Such compensation was, as a matter of law, exclusive of interest which may be awarded to the Plaintiff for being kept out of the money due to it on the date of resumption.

(b) Accordingly, the Plaintiff's acceptance of the said Offer without prejudice to its claim for interest did not constitute a counter-offer.

(c) Further or alternatively, even if, which is not admitted, the Plaintiff's acceptance by its letter dated 16th February 1998 did in fact constitute a counter-offer, the said counter-offer has in fact been accepted by the Government by LACO's letter dated 30th March 1998 ...

(d) Still further or alternatively, ... the Plaintiff says that the Government is estopped from alleging that the Plaintiff has not effectively accepted the said Offer by reserving its rights to claim interest.

16. (a) After the letter of 14th July 1998, the Government continued to maintain the position that there was no binding agreement with the Plaintiff on the question of compensation.

...

17. (a) In the premises, the Government has, in breach of the Agreement, wrongfully threatened and continues to threaten not to perform its obligations under the Agreement.

(b) Further or alternatively, the Government has, in breach of the Agreement, failed or refused to pay the Plaintiff the agreed amount of compensation in the sum of HK$21,409,596.00, despite the Plaintiff's request and demand.

...

AND the Plaintiff claims :-

(1) A declaration that there was a binding agreement between the Government and the Plaintiff in terms as pleaded in paragraph 11 hereinabove;

(2) A declaration that the Plaintiff's right to claim interest under the provisions of the Ordinance and the Lands Resumption Ordinance is not in any way affected by the making of the Agreement;

(3) An Order that the Government do forthwith pay the Plaintiff the agreed amount of compensation in the sum of $21,409,596.00; ..."

15. Mr Coleman, for the defendant, took me through the relevant provisions of the RWUCO, Cap.370 and the Lands Resumption Ordinance, Cap.124 ("LRO"), and also through relevant passages of Land Compensation and Valuation Law in Hong Kong, 2nd Ed., by Gordon N Cruden, in which the learned author expounds upon the two parallel regimes under which the question of compensation upon resumption of land can be pursued, namely, the statutory regime and the "ex gratia payment" regime :

"EX GRATIA PAYMENTS

General

The assessment of compensation for land, either resumed or adversely affected by public or other purposes, has for many years been complicated by the Government's large scale system of ex gratia payments. Where land is resumed and compensation judicially determined, the common criteria is for the amount of compensation to be determined by reference to the open market value of the land. Where the Government elects to settle claims by making ex gratia payments, they do not necessarily reflect the open market value. In fact, under the formalized system of ex gratia payments which has evolved, the payments have generally exceeded open market value.

...

... As the payments were ex gratia, they were not subject to any statutory principles restricting the sum paid to market value. Settlements on the basis of ex gratia payments circumvented the intricate procedural requirements of a compulsory resumption, avoided delay and removed uncertainty. ...

Many of the large scale resumptions took place during periods of high and generally increasing land prices. The volatility of land prices often increased the difficulty of determining the open market value. It was against the background of these factors that two parallel but very different systems of compensation or payment for land developed. Where agreement was not reached, compensation for land compulsorily resumed continued to be judicially determined on the basis of open market value. On the other hand, both in the case of resumptions and where land was voluntarily surrendered, the consideration was in many cases agreed on the basis of ex gratia payments. ...

The system of ex gratia payment has for many years formed an important part of the Government land policy. Although the full details have never been fully published, the principles applicable to ex gratia payments are set out in restricted Government manuals circulated within the relevant departments. The appropriate rates are periodically reviewed. These reviews are held at least annually and the new rates published in the Gazette. ...

Parallel compensation systems

The existence of two systems for calculating the sums to be paid to owners when land is resumed, has on occasion created confusion. At times this confusion even extended to experts frequently involved in applying the relevant principles to the very different judicial and administrative systems of compensation."

(Chapter 21, pages 496-502.)

The statutory regime

16. The plaintiff's Lots in this case were resumed under section 13 of the RWUCO. Section 26 of RWUCO provides that no person shall have any right against the Government or any other person to recover any money in consequence of such resumption "except to the extent of the rights to compensation provided for in section 27". That compensation is to be assessed as if the claim were made under the LRO for land resumed under that Ordinance.

17. The claims procedure as provided for by section 29 of RWUCO permits negotiations between the parties, within the statutory framework, but prior to any determination which may be called upon from the Lands Tribunal. In other words, there is provision for the parties to reach an agreement as to compensation under the Ordinance. Failing such agreement, the Lands Tribunal may be called upon to determine a claim in its entirety or simply as to part of it.

18. Section 33 of RWUCO provides that the Lands Tribunal may direct that interest be paid on compensation. In other words, under RWUCO, there is no general right to interest on an award of compensation, but if a question as to compensation is referred to the Lands Tribunal and it makes an award thereon, the Lands Tribunal is discretionarily empowered to direct that interest be paid thereon.

19. LRO also permits negotiations between the parties as to compensation (sections 6 and 8), and failing agreement thereon to submit the matter to the Lands Tribunal for determination. It should be noted that there is no requirement for the Government to make any offer of compensation under RWUCO, as compared to section 6 of LRO.

20. Section 17 of LRO provides :

"... any sum of money payable as compensation by virtue of a determination of the Lands Tribunal or an agreement under this ordinance shall bear interest from the date of resumption of the land until the expiration of the time specified in the notice referred to in subsection (2). No interest shall be payable on any costs or remuneration."

21. The central question in this case is one of construction of the terms of the relevant correspondence in order to discover therefrom the intention of the parties. It is common ground that this must be ascertained objectively, namely :

"The meaning which the documents would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. The cardinal presumption is that the parties have intended what they have in fact said, so that their words must to be construed as they stand ..."

(Chitty on Contracts, Vol.1, 28th Ed., para.12-043.)

22. Mr Coleman submits that the Government's offer by its letter of 6 November 1996 was clearly an offer of ex gratia payment, and not a statutory offer. I agree. Although the term "ex gratia payment" is not used in the letter, the terms of paragraph 3 clearly point to the fact that it is an ex gratia one :

"3. Under the provisions of the Ordinance, you have a right in these circumstances to claim compensation but not until your land has actually been resumed. In order to expedite payment to you, it has always been Government practice to make an offer of compensation prior to the date of resumption. ... The Government hereby offers you the sum of $21,409,596.00 calculated at the rate of $414.00 per square foot, in full and final settlement of all and any claims which you may have in respect of the resumption of the above mentioned land."

23. It should be recalled that the letter is dated 6 November 1996, namely, six weeks prior to the date on which the Government's resumption of the land was due to take effect. Having informed the plaintiff that it had a "right" under the provisions of the Ordinance to claim compensation, and that such right could only be exercised after the land had been resumed, it was clear that the offer was being made in accordance with the Government's long-standing practice to make an offer of compensation prior to the date of resumption "in order to expedite payment to you".

24. The point was further elucidated in paragraph 10(iv) and 12 of the letter in the following terms :

"10. Once the Government is satisfied that you are entitled to compensation, the Legal Advisory and Conveyancing Office (Tuen Mun) will draw up an Agreement as to Compensation and Indemnity for your execution. The most important terms of such an agreement are as follows :-

...

(iv) You will not make any claim for compensation to the Secretary for Transport or to the Lands Tribunal under the provisions of the Ordinance.

12. In the event that you do not accept this offer or withdraw your acceptance on or before the reversion date, you may, in accordance with the provisions in Section 29 of the above Ordinance, submit a claim for compensation to the District Lands Officer, Tuen Mun who will be acting on behalf of the Secretary for Transport."

25. The enclosed Notes entitled "HOW TO RECEIVE COMPENSATION FOR AGRICULTURAL LAND RESUMED BY THE GOVERNMENT" further illustrate the point, in paragraphs (3) and (4) thereof :

"(3) If you decide not to accept the amount of compensation offered, you may make a claim for compensation in writing to the District Lands Officer stating the amount of your claim with evidence in support of this. In the event that your claim is not agreed it may be referred by you or by the Government to the Lands Tribunal for the amount of compensation to be determined. The figure awarded will then be binding on both you and the Government.

(4) Should you wish to make such a claim, you are strongly recommended to take professional advice to avoid unnecessary delays."

26. There is no dispute that the rate of compensation which was adopted, namely, $414.00 per square foot, accorded with the ex gratia rate which was applicable to agricultural land in the New Territories at the time, as advertised in the Government Gazette in G.N.4139 dated 13 September 1996 :

"REVISED EX-GRATIA
COMPENSATION RATES FOR RESUMED LAND

Notice is hereby given that as from 1 October 1996 the following ex-gratia compensation rates may apply:-

...

Owners of agricultural land in the New Town Development Areas of the New Territories (Zone A) and the urban areas of Hong Kong and Kowloon may be offered ex-gratia compensation at $414 per square foot."

27. Ms Li submits that, as a matter of law, compensation for the resumption of land is compensation purely for the value of the land itself, exclusive of any consideration of interest, and referred me in this connection to Suen Sun-yau v. Director of Buildings and lands [1991] HKDCLR 33. This concerned an application by the applicant as the owner of agricultural land to the Lands Tribunal for compensation under the Crown Lands Resumption Ordinance, Cap.124. In awarding the applicant interest on the award of compensation, the presiding officer stated as follows :

"The applicant is entitled to interest from the date of resumption, in accordance with the provisions of s.17 ...

Interest is awarded, of course, not as part of the compensation for the loss of the resumed land but for the applicant being kept out of the money, which became due to him on the date of the resumption. On that day he was compelled by law to accept as compensation the cash equivalent of the value of the resumed land, in exchange for that land. Hence s.17(3) provides that compensation 'shall bear interest from the date of resumption...'"

It follows, submits Ms Li, that properly construed the offer was one simply for the value of the land, exclusive of any consideration of interest. Further that, the words "in full and final settlement of all and any claims which you may have in respect of the resumption of the above-mentioned land", can and must properly be interpreted in the same light, in particular the words "in respect of the resumption of the above-mentioned land" being entirely consistent with such an interpretation. She points further to the first sentence of paragraph (2) of the accompanying Notes :

"(2) The letter offers you a sum of money by way of compensation for the land to be resumed. ..."

as being consistent with such an interpretation.

28. It is, however, important to bear in mind that the meaning of the offer in the letter of 6 November 1996 falls to be construed in its context, namely, the full terms of the letter and its accompanying Notes. Properly construed, in my view, the offer was one of ex gratia compensation, which expressly did not relate to the provisions of the Ordinance, and the plaintiff was explicitly informed that if it did not accept the offer, it was entitled to submit a claim for compensation to the DLO in terms of section 29 of the Ordinance.

29. Furthermore, the qualification that the offer was "in full and final settlement of all and any claims which you may have in respect of the resumption of the above-mentioned land", meant that it was a comprehensive, all-inclusive offer, and if the plaintiff accepted it, he would have no further claim of any nature whatsoever (including for interest) against the Government. That, in my view, is the plain meaning of the letter.

30. The provision in section 17(3) of the LRO to the effect that :

"... any sum of money payable as compensation by virtue of a determination of the Lands Tribunal or an agreement under this ordinance shall bear interest from the date of resumption of the land until the expiration of the time specified in the notice referred to in subsection (2) ...",

had no application, since the offer was one expressly made outside of and apart from the statutory regime.

(It is accepted by the defendant that the offer remained open or was subsequently re-opened for acceptance at some time around February 1998.)

31. It follows from the above that the Acceptance Letter duly signed by the plaintiff which was returned to DLO under cover of the letter from LDS dated 16 February 1998 - clearly the two documents must be read together - was not an acceptance of the Government's offer of 6 November 1996, since LDS stated in the cover letter :

"Our client's acceptance of the compensation as mentioned in your offer letter dated the 6th November 1996 in the sum of HK$21,409,596.00 is completely without prejudice to their claim for interest thereon under the relevant provisions of ... Cap.370 and ... Cap.124 ..."

Such a qualified acceptance clearly did not create a binding agreement. On a proper construction, the letter from LDS dated 16 February 1998 constituted a counter-offer by the plaintiff.

32. Ms Li submits that if the letter from LDS dated 16 February 1998 was a counter-offer, then the counter-offer was accepted by the Government by the letter of 30 March 1998 from LACO to the plaintiff. In my view, this is not correct. The relevant part of the letter states :

"I refer to the letter dated 6.11.1996 addressed to you by the Director of Lands ... in connection with the resumption of the above lots. I understand that you have accepted the terms contained in the said letter. You will appreciate that before compensation can be paid I require to be satisfied that you have a good title to the above lots."

33. It refers only to the Government's original Offer Letter of 6 November 1996, not to any subsequent correspondence or events, and it was the terms contained "in the said letter" which the writer indicated that she understood been accepted. The fact is simply that wherever the writer had derived her "understanding" that the plaintiff had accepted the terms of that Offer Letter, she was wrong. The letter cannot be construed as representing that the Government was accepting the plaintiff's counter-offer of 16 February 1998.

34. In the letter of 30 March 1998, LACO went on to say, proceeding from the (erroneous) "understanding" that the plaintiff had accepted the terms of the Offer Letter of 6 November 1996, that the plaintiff was required to demonstrate that it had a good title to the Lots before compensation could be paid, and explained what was required of the plaintiff in that respect. Thereafter, further correspondence ensued in relation to the plaintiff's efforts to show that it had good title to the Lots in question, until by its letter of 14 July 1998, DLO informed the plaintiff that its acceptance was ineffective, and that its right to claim compensation had been barred by lapse of time.

35. These facts are to be distinguished from those which pertained in Yau Fook Hong Co. Ltd v. Attorney General [1988] 1 HKLR 573, which Ms Li cited in support of her argument.

36. The Government thereafter, by DLO's letter dated 23 July 1998, issued a fresh offer in the same amount, "in full and final settlement of all claims, costs and demands including interest and professional fees which you may have ...". The plaintiff has never purported to accept such fresh offer, insisting that it had accepted the original offer of 6 November 1996, or alternatively that the Government had accepted its counter-offer of 16 February 1998.

37. Notwithstanding the stalemate which had been reached, by letter dated 22 December 1998 to the plaintiff's solicitors, LACO stated :

"I was given to understand that your client is still not agreeable to accept the sum of HK$21,409,596.00 as full and final settlement of all claims that your client may have against the Government in respect of the resumption of the above lots.

In order that compensation may be released to your client as soon as possible in the event your client shall accept the offer from the Government (if any), or the Government shall accept the claim lodged by your client in accordance with the Roads (Works, Use and Compensation) Ordinance Cap.370 (if any) or that the amount of compensation shall be awarded by the Lands Tribunal under Cap.370, I am prepared to proceed with title checking in the meantime."

Thereafter, on 1 April, the plaintiff lodged these proceedings.

38. The plaintiff's case in the alternative is that the Government, by reason of its actions and utterances as aforesaid, is estopped from alleging that the plaintiff has not, by reserving its rights to claim interest, effectively accepted the offer of 6 November 1996. In my view, however, for the reasons given above, the Government did not at any stage, whether by words or conduct, or both, represent to the plaintiff that the Government accepted that the plaintiff had accepted its offer of 6 November 1996, or that a binding agreement had come into existence. The Government's utterances and actions after receipt of the plaintiff's counter-offer of 16 February 1998, in particular its agreement to proceed with title checking in the meantime, were contingent upon it being established that a binding agreement had been concluded, or would at some stage in the future be concluded. The Government is not estopped in these circumstances from alleging that the plaintiff has not accepted its offer of 6 November 1996.

39. In all the circumstances and for the reasons given above, the plaintiff is not, in my view, entitled to either of the declarations or the order which it seeks. The plaintiff's claims are dismissed, and I make an order nisi that the plaintiff is to pay the defendant's costs of these proceedings, with a certificate for counsel.