TING JAMES HENRY v. HKSAR

FAMC 60/2006 & FACC 4/2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 318 OF 2005)

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2007 (CRIMINAL)

(ON APPEAL FROM CACC NO. 318 OF 2005)

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RULING ON THE BASIS OF TAXATION

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1.  After taxing most parts of the Appellant’s bill of costs filed in this Court on papers, I directed parties to attend an oral hearing for certain issues arising out of it in particular in respect of the Appellant’s claims for fees for 3 Counsel.  In the written submission lodged by the Appellant’s Counsel, she also raised argument concerning the proper and correct basis for taxation of the costs of the Receiving Party in this appeal (ie. the Appellant) before the Court of Final Appeal and in the leave application before the Appeal Committee.

2.  Perhaps at this juncture it would be appropriate for me to repeat again what was the costs order granted by the Court of Final Appeal after disposal of the substantive appeal in November last year.  At paragraph 60 of the Judgment handed down on 5 November 2007 in respect of costs, the Court made an order that:

“The Appellant should be awarded the costs of this appeal, the costs of the application to the Appeal Committee for leave to appeal, and the costs of the application to the Court of Appeal for certification. The Court of Appeal had refused to award costs of the trial in the Appellant’s favour.  The parties should submit written submissions within 28 days on the question of costs of the trial.”

3.  Eventually, by its Judgment handed down on 14 December 2007, the Court of Final Appeal agreed with the Court of Appeal decision to refuse awarding any costs of the trial to the Appellant.

4.  For the purpose of today, we are not talking about the costs below.  What we are concerned here, is just the costs of the appeal and the costs of seeking leave to appeal before the Appeal Committee. In fact, for that part of the costs before the Appeal Committee, since the parties have not much quarrel, so what we focus on is just the costs of the substantive appeal.

5.  The Appellant’s counsel relies heavily on the wordings under Section 15[1] of the Costs in Criminal Cases Ordinance (“the Ordinance”), Rule 7[2] of the Costs in Criminal Cases Rules (“the CCC Rules”) and Order 62 Rule 2(4) of the Rules of High Court (“RHC”) in support of her arguments that for taxation of the costs of the substantive appeal (which was originated from a criminal trial in the High Court) it should be taxed in accordance with the Ordinance and should therefore be taxed on the common fund basis.

6.  The Appellant’s counsel also draws assistance from the provisions under Section 17(1) and (2) of the Hong Kong Court of Final Appeal Ordinance to say that when this Court exercises the power on disposing the appeal, the Court has the same power as would the court below. On this, she also draws my attention to the Judgment on Costs by this Court handed down in December 2007, and in particular, paragraph 5.

7.  However, as pointed out by the Respondent’s counsel, the said Judgment on costs, in particular paragraph 5, should be read in the context that this Court at that time was considering the costs of the trial. So no doubt if reading that particular paragraph in that context, the Ordinance must apply.  In fact, the Respondent’s counsel conceded that was the position for the costs below.

8.  However, in respect of the costs before this Court, I think this case gives me an appropriate opportunity to clarify the issue so that for future purposes, parties should be aware for the purpose of taxation of the costs before the Court of Final Appeal in respect of criminal cases, whether the Ordinance will apply for such taxation.

9.  For reasons that I will give below, I conclude that the Ordinance does not apply to those costs incurred by the winning party for the appeal before the Court of Final Appeal.

10.  Firstly, the Ordinance was enacted in January 1997.  Under the definition of “the court”, it only refers to a magistrate, District Court, Court of First Instance and the Court of Appeal.  It left out the Court of Final Appeal.  Obviously, at the time when the Ordinance was enacted, the Court of Final Appeal had not come to its operation yet.  Nevertheless, the Ordinance has now been in operation for more than 10 years.  The Court of Final Appeal has heard cases, including criminal cases, for more than 10 years.  No amendment is made in respect of the definition of “the court” to include the Court of Final Appeal.  So it reflects the legislative intention that the Ordinance does not apply to the Court of Final Appeal and those proceedings before it.

11.  The Appellant’s counsel referred to Section 17 of the Court of Final Appeal Ordinance to argue that, as a result of that section, there is no need to make express reference.

12.  With respect, I reject that such argument.  Obviously, the Ordinance gives power of the court to award and tax costs in criminal cases.  Without this piece of legislation, the court has no inherent jurisdiction to award costs in criminal cases.  So unless it is expressly provided for in the Ordinance, no court would have inherent jurisdiction to give costs in criminal cases.

13.  So it would rather reinforce my conclusion that I have made that since the Ordinance does not include the Court of Final Appeal, for proceedings before the Court of Final Appeal, even if it was a criminal case, the Ordinance does not apply.

14.  The Appellant’s counsel also referred to Section 15 of the Ordinance which provides for the general principle as to how such costs should be assessed, and it starts with “In any criminal proceedings.”  The Appellant’s counsel argued that it means any criminal proceedings in any court.

15.  However, I must disagree with such argument, because when we look at the sub-provisions of the said section, they refer to “the court” or “a judge”.  Obviously, those criminal proceedings to which this general principle applies must be relating to “the court” and “the judge” as defined under Section 2.  I cannot give such interpretation to this particular provision as suggested by the Appellant’s counsel.

16.  Furthermore, I agree with the Respondent’s counsel that if we look at our own Hong Kong Court of Final Appeal Ordinance, and its subsidiary Rules, the conclusion must be clear enough that for costs incurred in this Court, it must be taxed in accordance with Order 62 of RHC but no others.

17.  Section 43 of the Court’s statute provides how the Court will award costs.  It says:

“(1)  Costs, including the costs in the court below or before a magistrate, shall be paid by such party or person as the Court shall order, and such costs shall be taxed by the Registrar or some other officer of the Court to whom the Registrar may delegate the function.”

18.  And then we go to the Rules as to how this Court will tax the costs awarded by the Court for proceedings before it.  Rule 57 says:

“(1)  All bills of costs ordered to be taxed by the Court shall be taxed by the Registrar in accordance with Order 62 except Rule 35 of the Rules of High Court, and that Order shall be construed accordingly be construed with such modifications, adaptations, qualifications and exception as may be necessary for this purpose.”

19.  So the said Rule 57 applies to all bills of costs lodged for taxation in this Court.  It does not differentiate bills of costs in civil cases or criminal cases.  It applies to all.  So it is quite clear under this Rule that if there is any bill that would be lodged for taxation by this Court in respect of the costs incurred before the Court of Final Appeal, it must be taxed in accordance with Order 62.  It seems it would not be open to other interpretation than what I have suggested.

20.  That is not the end of the matter, because it goes further.  Under Rule 59, it provides how the Court should tax those costs incurred below.  It says:

“Where the Court directs a party to bear the costs incurred in the courts below or before a Magistrate, such costs shall be taxed in accordance with the rules for the time being regulating taxation in the courts below or before a Magistrate as the case may be.”

21.  Thus, in respect of the costs incurred in the courts below, the said Rule does provide for a possibility of different basis for taxation since such costs will be taxed in accordance with the rules for the time being regulating taxation in the courts below.  That is the provision which the Ordinance may come into play.  But that would only apply to those costs incurred in the court below, not in the Court of Final Appeal.

22.  I think the inclusion of Rule 59 makes it without any uncertainty that we have two systems here.  For those costs incurred in the Court of Final Appeal, it would be taxed under Order 62 of the RHC.  For those costs incurred in the courts below, it would be taxed in accordance with the regulations and procedures governing the taxation in the courts below.  So in criminal proceedings, for the costs incurred below, they would be taxed under the Ordinance.

23.  In conclusion, for the reasons that I have given, according to the proper interpretation of the Court’s statute and rules, the costs incurred before the Court of Final Appeal must be taxed in accordance with the provisions under Order 62 of the RHC.  As such, since no other basis was expressly provided in the costs order, the costs incurred by the Appellant here must be taxed on the party and party basis instead of the common fund basis as contended by the Appellant.

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[1]    Section 15 provides:

In any criminal proceedings-

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;
(b) a court or a judge may have regard to any assessment laid before it or him for their assistance by any party to the proceedings of the amount of costs properly so incurred by any such party;
(c) an order as to costs shall be such as a court or a judge considers just and reasonable;

…

[2]    Rule 7 provides :

(1) The taxing authority must consider the claim, any further particulars, information or documents supplied by the claimant under rule 6 and any representation by any interested party and must allow such costs in respect of-

(a) such work as appears to the taxing authority to have been actually and reasonably done; and
(b) such disbursements as appear to the taxing authority to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate the claimant for any expenses properly incurred by the claimant in the proceedings.

(2) In taxing costs under subrule (1) the taxing authority must take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.