R. v. WAI WING SANG and Another

IN THE COURT OF APPEAL

1990, No. 276
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

Costs

1. On 23rd April 1992 this court determined applications for leave to appeal by Wai Wing Sang, represented by Mr. G.J.X. McCoy with him Mr. A. King instructed by Messrs. Massie & Co., and Ng Wai Keung represented by Mr. Michael Poll on the instructions of the Director of Legal Aid. We granted the applications for leave of both applicants in respect of their conviction for murder and for robbery, treated the hearing as the hearing of the appeals and allowed the appeals. We quashed the convictions and set aside the sentence. The judgment of the court then went on:

"This is clearly a case where an order for retrial should be made. We order that both appellants be retried on a fresh indictment in respect of the two counts of murder and the count of robbery."

2. When the judgment containing that decision was delivered Mr. McCoy made an application for costs as did Mr. Poll. As it was known that the question of whether costs of the appeal, where a retrial was ordered, lay within the powers of this court was a matter for consideration in a test case - the provisions of section 83XX (3) (a) of the Criminal Procedure Ordinance, Cap. 221 being the relevant provision and inconsistency with the Hong Kong Bill of Rights Ordinance, Cap. 383 being the issue - both applications were adjourned.

3. On 7th July 1992 this court gave judgment on those issues - R. v. Man Wai Keung CA403/1990 (unreported) and held that subsection (3) (a) of section 83XX of the Criminal Procedure Ordinance was inconsistent with Article 10 of the Bill of Rights and, being so inconsistent, was repealed by the Ordinance. The effect of this was that appellants whose appeals against conviction have been allowed, and which class would now include appellants who are the subject of an order for retrial, were entitled to ask this court to exercise its discretion to order that their costs be paid out of public funds.

4. On 10th November 1992 the applications for costs in the instant case by both Mr. McCoy and by Mr. Poll were renewed. The applications were opposed by Mr. Bruce, who appeared for the Crown both at the hearing of the appeal proper and of this application.

5. We reserved our decision - although we note that in Man Wai Keung we intimated that on such applications, the matter being entirely at the discretion of the court, the answer would normally be "yes" if it is just to make such an order or "no" if it is not - because of certain matters raised in argument - and to seek views on the principles, if any, to be applied, from members of the Court of Appeal.

6. The award of costs generally in respect of successful appellants was considered in R. v. Kwok Moon Yan and Lok Man Chiu [1989] 2 HKLR 396. There the collegiate view of the Court of Appeal as to the principles upon which the court will act were set out. In the light of Man Wai Keung, the passage in Kwok Moon Yan, appearing at page 401 G/H needs reconsideration. Further, in the light of the instructions which Mr. Poll has received from the Director of Legal Aid to make an application for costs, which is a change in the attitude maintained by the Director up to now, the passage in Kwok Moon Yan appearing at page 402 E/F has point.

7. What the court said there was this:

"We have not, and deliberately, considered the position of a legally aided appellant. While the generality of this judgment might well have application to orders to be made in respect of such a one, statutory provisions and the practicalities of the grants of Legal Aid in Hong Kong and their funding have considerable bearing. On these, properly, we have not been addressed."

8. The court is still in that position in so far as, other than the direct application on instructions, Mr. Poll has addressed no argument to us.

9. Kwok Moon Yan stated that the normal practice in respect of the grant of appellate costs, and the costs of trial and costs of any earlier proceedings, is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order. Examples of positive reasons, such as where the appellant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is, or where there is ample evidence to support a conviction but it is quashed on a technicality which has no merit were instanced. In Man Wai Keung at p.14 we added:

"The fact that a retrial has been ordered and the reasons for the making of such an order will be additional factors to be considered in the exercise of that discretion."

10. In the instant case, now reported in [1992] 2 HKCLR 23, the appeals were allowed because of two misdirections by the trial judge: (1) as to lies: which omitted a Broadhurst [Broadhurst v. R. [1964] AC 441] direction which Mr. Bruce accepted should have been given and which we did not think admitted of the application of the proviso; and (2) because of comments made by the trial judge which themselves amounted to a misdirection.

11. It is Mr. Bruce's contention that the reasons for allowing these convictions were "technicalities". He has suggested that the "positive reasons" indicated in Kwok Moon Yan may need to be re-articulated. It is his submission that in this particular case the technicalities were such as to have no merit. Mr. McCoy countered this by stating, with respect to him, the obvious. The convictions have been set aside, technicality or no technicality. It might, he suggests, in any event, be inadvisable for an appellate court, having come to its decision as to whether or not the conviction should be upheld, to go into a lengthy dissertation on "merits" prior to the conclusion of the retrial ordered, on any application for costs.

12. We can obtain little assistance from our sister jurisdiction in England on the issue before us for it is but of recent date that the much wider powers to order a retrial, existent in Hong Kong for many years, have there come into effect.

13. The effect of an order for retrial is that while there is an acquittal, in the sense of a conviction quashed, nevertheless that "acquittal" can be reversed by the determination of a jury in the course of the retrial - given that the Crown decides to proceed. If this court sees fit to order a retrial, having allowed an appeal, then it must be assumed that it is the view of the court that evidence exists, and can be led, upon which a properly directed jury could come to a conclusion of guilt.

14. We would emphasise that we are here concerned with only the costs relating to the appellate proceedings. We expressly do not concern ourselves with any costs below. Further, we adopt that which was said in Kwok Moon Yan at page 400 I/J: that there is no onus upon the Crown to prove beyond reasonable doubt that the circumstances justify the court in declining to exercise its discretion in the appellant's favour:

"An award is discretionary and there is no 'standard of proof' in the accepted trial sense."

15. Having said that we view the appellant who, though successful, in his appeal is the subject of an order for retrial to be in a different position from the appellant who is entirely successful and is finally discharged. For that reason the principles enunciated in Kwok Moon Yan do not apply. We do not think that it would be proper to here re-articulate those principles so as to extrapolate them from Kwok Moon Yan into the case of an appellant whose retrial is ordered. In our judgment each case depends strictly on its merits. We exercise our discretion and in so doing bear in mind all the circumstances of the conviction appealed from, the reasons why the appeal has been allowed and reasons why we have thought fit to order a retrial - on that last we further bear in mind that which Huggins J.A. said in R. v. Au Pui Kuen [1977] HKLR 98 at 100 and which was accepted, with one reservation, as being correct by Lord Diplock in Au Pui Kuen v. A.G. [1979] HKLR 16 (PC) at p.22, on the principles to be applied when making a retrial order.

16. Turning to this instant case we revert, in the case of the 1st appellant, to the form of answer we intimated in Man Wai Keung as being desirable. Exercising our discretion and by a majority - we answer the application here in the affirmative.

17. He would also be entitled to his costs of this application.

18. As to the costs of the legally aided 2nd appellant, Ng Wai Keung. Before making any such similar order, although one might have been justified, we would require to be informed of the reasons for the Director of Legal Aid's change of stance and, further, have full argument addressed to us which, as we indicated in Kwok Moon Yan, we would require. Without having been fully addressed on these matters, we are not prepared to exercise our discretion in favour of the 2nd appellant.

19. The order will be that the 1st appellant do have his costs of the appeal and of this application to be assessed by the Registrar.

20. The application of the 2nd appellant is refused.