ATTORNEY CENERAL v. LEUNG KWOK WAH

1989, No. 730

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H E A D N O T E

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Costs in Magistrates Court - no power to 'reserve' - refixing hearing date - 'adjournment' within section 20.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 730 OF 1989

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J U D G M E N T

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1. This is a case stated by Mr Gould in North Kowloon Magistrates Court.

2. On 30th August, 1988, the respondent's trial, on three illegal immigrant related charges, began before Mrs Lily Yew. During the first witness' evidence in chief the prosecutor applied for an adjournment until the afternoon. The defence did not object and the case was adjourned.

3. At 2:30 p.m. the prosecutor applied for a further adjournment, on the grounds that he had insufficient experience to conduct such a case. Again the respondent had no objection, but asked for the costs resulting from the adjournment to the afternoon.

4. The magistrate extended bail, ordered that the "question of costs be reserved" and sent the case file to the Principal Magistrate to fix a date for a new hearing before another magistrate.

5. The respondent appeared before Mr Gould in the No. 1 Court later that afternoon and a new date was fixed. The respondent again applied for costs but this time, asked for the costs of the whole day. Awarding $3,000 costs, the Principal Magistrate said:-

"However, in doing so, I intentionally assessed the costs at about one-half of the Respondent's legal expenses that day, that proportion being ample to take account of any "enticement" or encouragement there may have been by the Respondent to the Prosecution to prolong the proceedings that day."

6. Mr Gould refused to review his order, being of the opinion that :-

"(a) The Learned Magistrate Mrs Yew had disqualified herself because she feared that it may appear that some form of prejudice had arisen on her part. This need to ensure that justice had been seen to be done extended also to the question of costs. Mrs. Yew was right to reserve the question of costs.

(b) Mrs. Yew, by disqualifying herself, had declined the opportunity of herself ruling upon costs; but she had not stated by whom such a ruling should be made.

(c) Although often a reserved question-of this:' nature is uplifted only by the eventual trial magistrate, I considered it was appropriate for me to uplift the question at that stage because

(i) Mrs. Yew's involvement had ceased, and

(ii) the issue was relevant to whether or not the Respondent would be legally represented at the new hearing. The, Respondent, having spent $6,000 and got nowhere because of the incompetence of the Prosecutor, would surely have doubts about the wisdom of such expenditure for a future occasion.

(d) The Prosecution was in default, neglect or omission of its duty to provide someone' who would or could prosecute. The Prosecutor provided was a Prosecutor in name only, but not in competence.

(e) I have no power to overrule another Magistrate's order so as to emasculate it, but in making an order as to costs in these circumstances I was not overruling Mrs. Yew's order. My order re costs was not in conflict with Mrs. Yew's order, and was consistent with the spirit of her order. It would be otherwise if, for example, I 'had sent the file back to her with a direction that she herself make an immediate ruling on the application for costs.

(f) The adjournments for which costs should be awarded were the adjournments from the morning to the late afternoon; and not for the adjournment from 30.8.88 to a future hearing date.

(g) Although the Respondent had raised no objection to the adjournments during the course of the day, it would be unfair to deprive him of costs merely because he endeavoured to give the Prosecution a chance to put its house in order."

7. The questions for the opinion of this Court are:-

"(1) Did I have the power to award costs to the Respondent for the adjournments, in spite of the trial magistrate having reserved costs?

If the answer is in the affirmative -

(2) Did I exercise my discretion in awarding costs properly?"

8. Counsel for the appellant submits that it was clearly the intention of Mrs Yew that the question of costs should be considered at the conclusion of the trial and, that being so, the Principal Magistrate was wrong to overrule the order of a colleague with co-ordinate jurisdiction. See R. v. Tsang Yew-so MA681/87.

9. Counsel further submits that, even if the Principal Magistrate did have power to make the order, he exercised he discretion inappropriately for the following reasons:

1. There was no application for costs in the morning. Had there been such an application, the prosecution might have withdrawn the application for an adjournment. See R. v. Wong Chi-shing MA633/88.

2. A magistrate is not entitled to award costs as a form of Legal Aid.

S.20 of the Magistrates Ordinance, Cap. 227 provides:-

"20. (1) Before or during the hearing of any complaint or information, a magistrate may adjourn the hearing to such time and place and on such conditions as he thinks fit.

(2) Where the hearing is adjourned-

(a) ..........................

(b) On the application of the complainant or informant, either personally or by counsel, and the magistrate is satisfied that the application is occasioned by some default, neglect or omission on the part of the complainant, informant or his counsel, as the case may be, he may order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as the magistrate may think fit."

10. Mr Lee, for the respondent, submits that the proper interpretation of this section is that the order for costs must be made at the time of the adjournment. He also points out that an order reserving costs is made only in civil proceedings and is not provided for in the Magistrates Ordinance, from which a magistrate derives his jurisidction to award costs.

11. On the second point, Mr Lee submits that the reason given at para (c) (ii) was the reason for considering the question of costs and not the reason for actually awarding costs.

12. The power of a magistrate to award costs is given by S.20. As Mr Lee says, there is no provision whereby costs may be reserved. 'The magistrate' in ss. (2) (b) is the same magistrate as in ss. (1). He is the one who adjourns the case. Mrs Yew made an adjournment order. Although her intention clearly was that the question of costs should be considered by the trial magistrate at the end of the proceedings, she made no order in terms of S.20. She could have awarded costs or refused them, but in fact she did neither.

13. The question is whether Mr Gould had power to do what Mrs Yew had not done. He could only have done so if he adjourned the hearing under ss. (1). When the parties appeared before him, he himself became seised of the matter. He could theoretically have proceeded to try the case there and then. When he fixed another hearing date, he implicitly made an order in terms of S.20 (1). Since the adjourning magistrate has power to award costs before the hearing, he had the necessary jurisdiction to do so. In making the order, he was not overruling Mrs Yew; she had made no effective order as to costs.

14. There seems to be no dispute that the respondent's costs amounted to $6,000. I am not attracted to the argument that, had there been an application for costs in the morning, the application for an adjournment might have been withdrawn. The fact remains that there was an adjournment at the request of the prosecution, which resulted in costs being incurred by the respondent.

15. I do not regard the Principal Magistrate's remarks at para. (c) (ii) above as awarding costs as 'a form of Legal Aid'. He was making a realistic assessment of the respondent's likely reaction if he did not receive his costs thrown away by the prosecution's unwillingness to proceed. These he was fully entitled to receive.

16. I am satisfied, for these reasons, that Mr Gould exercised his discretion properly. The answer to both questions is yes and the appeal is dismissed.