HKSAR v. KELVIN Y.C. LEUNG AND ANOTHER

HCMA 309 /2020

[2022] HKCA 1905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 309 OF 2020

(ON APPEAL FROM ESS NO. 39884 OF 2016)

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JUDGMENT

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1.  This judgment should be read together with the judgment which this Court handed down on 21 September 2022: [2022] HKCA 1414 (“Main Judgment”).  By the Main Judgment, we allowed the appellants’ appeal in HCMA 309/2020 against the wasted costs order that the Deputy Magistrate made against them on the ground of apparent bias.  We further made an order nisi that there be no order as to costs of the appeal.  

2.  By a summons filed on 28 September 2022, the appellants applied to vary the order nisi, seeking an order that the respondent do pay their costs of the appeal and the wasted costs application below.  Having considered the written submissions by the parties, we consider it appropriate to determine the matter on papers without an oral hearing.

3.  In appealing against the wasted costs order, the appellants advanced the following grounds: (1) there was actual or apparent bias on the part of the Deputy Magistrate; (2) there was no serious misconduct on their part; (3) the Deputy Magistrate failed to consider their duty to defend their client and to do so with fearless advocacy; (4) lack of natural justice in that they were not given the opportunity of answering accusations against them; and (5) it was the conduct of the prosecution and the Deputy Magistrate that prolonged the trial.

4.  We allowed the appeal and set aside the wasted costs order on the ground of apparent bias alone, leaving the remaining grounds as they were without formally ruling on them.  However, as detailed in the Main Judgment, we found the appellants’ conduct of the defence wholly unacceptable and unconducive to the administration of justice[1], and that it was responsible for considerable wastage of judicial time and resources, albeit the Deputy Magistrate and, to a lesser extent, the prosecution, were also responsible.[2] The disapproved conduct on their part included time-wasting bickering with the Deputy Magistrate propelled by mutual disrespect and animosity, use of disrespectful and impertinent language including an insulting remark against her;[3] unduly protracted, irrelevant and repetitive cross-examination of prosecution witnesses;[4] applications that were disruptive and wholly disproportional;[5] and calling defence witnesses whose evidence was protracted and was of minimal utility.[6]  We made it clear that although we allowed the appeal, we should not be seen as approving the conduct of the case by the appellants.[7]  On the contrary, we directed that the matter be referred to the Bar Association and the Law Society to see if disciplinary action should be taken against them for their conduct below.

5.  In their submissions for variation of the costs order, the appellants seek to explain and justify their conduct all-over again. This is in substance an attempt to re-argue the appeal.  It is impermissible and must be firmly rejected.

6.  Costs is a matter of judicial discretion.  Where the appellants had been guilty of wasting judicial time and resources, and conducting the defence in a manner wholly unacceptable and unconducive to the administration of justice, it is entirely appropriate not to award any costs of the appeal and the wasted costs application below even though we have allowed the appeal on the ground of apparent bias.

7.  Accordingly, the application to vary the order nisi is refused, and the order nisi is made absolute.  We further order the appellants to pay the respondent’s costs of this application, to be taxed if not agreed.