Case Detail

CACC000347A/1988

	1988, Nos. 347 & 500
	(Criminal)

Guidance on the award of costs of the Court of Appeal in criminal matters.

IN THE COURT OF APPEAL	1988, No. 347
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	KWOK MOON YAN AND OTHERS

_______

	1988, No. 500
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	LOK MAN CHIU

______

Coram: Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 7 Apri1 1989

Date of Judgment: 27 June 1989

______________

J U D G M E N T

______________

Silke, V. P.:

1. Kwok Moon Yan, the Applicant, in Criminal Appeal 347/1988 had, on 13th January 1989, his appeal against conviction allowed.

2. He had been convicted in the District Court on three charges of burglary which related to events which took place on 24th November 1987. Other defendants were also involved. Kwok was the driver of a van used in the course of daylight burglaries. In that which took place at the Chi Shing Knitting Factory the van was parked in a cul-de-sac at the back of that factory. Two other of the defendants were seen to run out after being surprised on the sixth floor by a police officer. In the cul-de-sac they gestured to Kwok who drove off leaving the other defendants behind in the process.

3. Then, later, at the Universal Building Factory, goods were taken. At the Wang Lik Industrial Building, police were on duty. They saw Kwok's van arrive and goods, which were later identified as part of the goods from Universal Building, were removed from it. Kwok and the other defendants were arrested. Goods which had been taken from a third premises, the Shing Ka Garment Factory, were also recovered at Wang Lik.

4. On arrest Kwok had made statements to the police. He had made no comment when shown statements of another defendant and he had denied being present at the Universal Building Factory. At trial he gave evidence to the effect that he was the owner of the van and that he earned his livelihood by hiring it out. In the course of the hiring he normally drove and helped with the unloading and loading of goods. The transactions on 24th November were ordinary commercial ones as far as he was concerned. He was disbelieved.

5. The issue in the appeal was whether, apart from any disbelief of Kwok's evidence, there was sufficient evidence in the Crown case to justify the convictions.

6. We felt that, while there was grave suspicion that Kwok was involved in a burglarious enterprise with the other defendants, the trial judge was not justified in reaching his conclusions of guilt by finding, as a matter of commonsense - and in the absence of other positive evidence, except that of the waving off and the finding of goods in his possession - that the other defendants would not have brought Kwok along unless he was also involved.

7. Mrs. Robertson applied for costs on his behalf.

8. Lok Man Chiu in Criminal Appeal 500 of 1988 had, on 3rd February 1989, his appeal against conviction allowed.

9. Lok had been tried in the District Court on one charge of living on the earnings of prostitution and one of assisting in the management of a vice-establishment on 11th April 1988. The premises were the Ka Sha Villa, 330 King's Road, Block A, 2nd floor. He was also tried on two further charges, one of living on the earnings of prostitution and one of managing a vice-establishment on 19th April 1988. There the premises were the May Do Building, Block A and C, 2nd floor, which was also situated at 330 King's Road.

10. He was found not guilty of the first two but convicted of the second two - the managing charge being amended to assisting in the management. On the charges upon which he was convicted the prosecution's case depended on the evidence of a police constable who was PW7. His credibility was in issue. The trial judge found that there was a strong likelihood that another constable had copied out his statement of the events from the statement made by PW7 but without PW7 knowing anything about it.

11. There was internal evidence in the testimony of PW7 and the other constable at trial which gave us cause to doubt the validity of that finding and the consequent reliance by the trial judge on the credibility of PW7.

12. Mr. McCoy applied for costs on his behalf.

13. As the principles upon which this Court acts in the granting or the refusing of costs have not until now been fully argued we adjourned Kwok's application to a day to be fixed to permit this to be done. When Lok's application came on for hearing a little later we also adjourned it for the same purpose. We directed that both applications be consolidated and heard on the same day. We further indicated that when the submissions had concluded we desired to consult with other members of the Court of Appeal to obtain a collegiate view of the correct principles.

14. Neither Kwok nor Lok were 1egally aided.

15. In the consolidated applications the applicants were similarly represented; Mr. McCoy addressed us on the principles, his submissions being adopted by Mrs. Robertson and each separately addressed us on the merits of their respective applications. Mr. Cross appeared for the Crown.

16. We have now consulted with other members of the Court of Appeal and that which we state is the collegiate view.

17. The root of our jurisdiction lies in section 83XX of the Criminal Procedure Code, Cap.221. this reads:

"83XX. (1) This section applies to any appeal -

(a)    under section 82 against conviction;
(b)    under section 83J against a verdict of not guilty by reason of insanity;
(c)    under section 83M against a finding under section 75 that the appellant is under disability.

(2) Where an appeal to which this section applies is allowed, the Court of Appeal may subject to subsection (3), order the payment out of the public revenue of the costs of the appellant.

(3) No order shall be made under this section where -

(a)    in the case of an appeal referred to in subsection (1)(a), the appellant is ordered under section 83E to be retried;
(b)    in the case of an appeal referred to in subsection (1)(b), the provisions of section 83K(4)(a) apply; or
(c)    in the case of in appeal referred to in subsection (1)(c); the provisions of section 83N(3) apply.

(4) The costs payable under this section shall be such sums as appear to the Court of Appeal reasonably sufficient to compensate he appellant for any expenses properly incurred by him in the appeal, including any proceedings preliminary or incidental thereto or in the court of trial or before a magistrate.

(5) The amount of costs ordered to be paid under this section shall, except where the amount is fixed by the Court of Appeal, be ascertained by the Registrar."

18. So - we have a discretion to order the payment of costs of an appellant out of public revenue but subject to the prohibitions in subsection (3). This to compensate the appellant for any expenses properly incurred in the appeal, in the trial and in any appearance before a magistrate. The expenses in the appeal include any proceedings preliminary or incidential to it which we consider would include such matters as an application for the calling of fresh evidence and its taking, bail applications an the like.

19. We may either fix the amount ourselves or direct that they be ascertained by the Registrar. There is no specific provision directing taxation but we have little doubt that the Registrar, in ascertaining what they should be, would apply the ordinary rules of taxation contained in the provisions of Order 62 of the Rules of the Supreme Court.

20. The provenance of section 83XX lies in section 24 of the Criminal Appeal Act 1968, now incorporated as section 7 of the Costs in Criminal Cases Act 1973. The award of costs in England and Wales is presently governed by section 16 of the Prosecution of Offences Act 1985. This Act is not applicable in Hong Kong and it is based on a schema both as to Legal Aid, regulations made under the Act [Costs in Criminal Cases (General) Regulations S.I. 1986 No.1335], the fund from which payments are made and the nature of prosecutions very different from that pertaining in Hong Kong - though the Crown Prosecution Service may now have brought that last more in line with procedures in Hong Kong. There was also issued on 29th May 1989 a Practice Direction entitled "Crime: Costs in Criminal Proceedings" which revises all previous Practice Directions and Notes.

21. Section 9 subsection (3) of the Criminal Procedure ordinance reads:

"(3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprison of treason) shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England." (Emphasis supplied)

22. We are therefore enjoined to take note of and apply the English practice; see Ng Yui Kin and others v. The Queen [1983] HKLR 356. But the words emphasised, in our judgment, entitle us to take into consideration general Hong Kong circumstances in applying English practice and procedure in these Courts.

23. That having been said there are a number of English Practice Directions and Practice Notes which have relevance.

24. The starting point is the Practice Direction (Costs Successful Defendants) [1973] 1 WLR 718. That need not detain us for it was superseded by the Practice Direction (Costs: Acquittal of Defendant)[1981] 1 WLR 1383 which was in similar terms but with the one change that the power to award costs to an acquitted defendant was limited to cases where a defendant was acquitted on all counts. One further point arises in relation to the 1973 Practice Direction. It had been given by Widgery, L. C. J. after consultation with the Judges of the Queens Bench and the Family Division. In R. v. Arron [1973] l WLR 1238 Scarman, L. J. (as he then was) accepted it, though without giving reasons, as applicable to proceedings in the Court of Appeal and this is the only reported case where this was done - though Scarman, L. J. does not appear to have been advised of the full extent of what was to be the normal practice.

25. It is noteworthy that in para 2.7 of the May 1989 Practice Direction that the Court of Appeal is enjoined, when making a costs order, to have in mind the principles applied by the Crown Court in relation to acquitted defendants.

26. Bearing the 1981 Practice Direction in mind, in our judgment it is open to this Court, if it decides to exercise its discretion in favour of an award of costs to a successful appellant, to follow it as far as it is practical and with particular reference to any award it might see fit to make in respect of proceedings other than the appeal itself. We find guidance in those Practice Directions and notes as to the course we should take. However, the Practice Note of the 25th November 1982: [1982] 3 AER 1152: relates specifically to the Magistrates Courts and is not of direct relevance.

27. We emphasise that the exercise of the power provided by s.83XX is in the unfettered discretion of the Court, and falls to be exercised in the light of the circumstances of each particular case, but the normal practice 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.

28. Mr McCoy has submitted that, because the discretion is so intimately connected with the facts of the case and the conduct of the trial that it is a discretion exercised in the course of criminal proceedings (see The Queen v Wong Hing Yuk [1989] 1 HKLR 251 and therefore there is an 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. With respect, we do not agree. An award is discretionary and there is no "standard of proof" in the accepted trial sense.

29. The real issues here are: in what circumstances should this Court find positive reasons for "making a different order" in the case of a successful appellant; and second: do the same considerations apply to the grant or refusal of an award in the Appeal itself as are relevant to costs in all the proceedings prior to the appeal.

30. On the first: positive reasons for not making such an order would be (i) where the appellant's own conduce has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. We do not view this as meaning that there must be both a bringing of suspicion and a misleading before an successful appellant will be deprived of his costs. If it is the view of the Court that a man has brought suspicion or himself, or having done that, he has also misled the prosecution, either by the very bringing of that suspicion, or some other matter, into thinking the case against him is stronger than it is then these, either separately or combined, are factors which lie for the consideration of the Court in the exercise of its discretion.

31. The manner in which an appellant originally meets the charge will be a factor. We are aware that in The Queen v. Lee Tsat Pin Cr. App. 315/85 (unreported) the Court took the view that the non-advancing of an explanation to the investigating authority did not fall within the rubric of bringing suspicion or misleading. We entirely accept that the principle that no man should become his own betrayer must remain inviolate. But we do not think this to mean that, if an appellant had a good and valid explanation which he neglected to bring forward at an early and appropriate moment this should not be a factor in considering his contribution to the prosecution bringing the charge in the first place. It is unlikely that a case of that nature would ever reach the Court of Appeal but if it did then no costs of anything other than the proceedings in that Court should be allowed.It might be preferable, were these circumstances to arise, if a Court of Appeal were to fix a sum itself rather than referring it to the Registrar for him to ascertain it.

(ii) No order of costs should be made where there is ample evidence to support a conviction but it is quashed by this Court on a technicality which has no merit and that covers both costs in the Court of Appeal and elsewhere.

32. Mr. Cross has asked us to add another category. Where a retrial is ordered there is no jurisdiction to make an award of costs. Therefore, he submits, where, because of some reason peculiar to an appellant or to the circumstances of the offence, this Court declines to order a retrial which it otherwise would, (for the principles applicable see Au Pui Kuen v. R. [1979] HKLR 16) no order of costs should he made.

33. We decline to accept so broad an approach and to find this to be a "positive reason". It would be a matter for the discretion of this Court in all the circumstances - but it would seem very unlikely that this Court would further exercise its discretion to make orders in respect of any earlier proceedings.

34. On the second issue: we would respectfully adopt and follow that which was said by Watkins L. J. in delivering the judgment of the Court of Appeal in R. v. Agritraders Ltd. [1983] 1 QB 464. There, in commenting on a proposition advanced to the Court that an order for costs in the Court of Appeal and in the Crown Court - expressed as "costs here and below" - included all other Courts in which costs were incurred, said at page 468:

"We find this submission almost incomprehensible. By section 7(1) this court may, in its discretion obviously, order the payment out of central funds of the costs of the appellant. In the exercise of that discretion the court is entitled to award an appellant his costs in this court and refuse him his costs in the Crown Court. It may award him his costs in the Crown Court too; likewise the magistrates' court. It will exercise its discretion, if invited to do so, in respect of each court in turn, having regard to the circumstances in which on appeal against conviction has been allowed in this court, the circumstances obtaining in the Crown Court, bearing in mind Practice Direction (Costs: Acquittal of Defendant) [1981] 1WLR 1383 and the circumstances of the committal proceedings. The considerations involved in each of this variety of circumstances will inevitably be different and demand, therefore, a separate exercise of the discretion."

35. In considering proceedings in each court separately the normal practice, and that which we have indicated as "positive reasons" for the making of a different order, are applicable. Additionally we interleave that which we have said earlier as to the unlikelihood of making a costs order in respect of lower court proceedings, of whatever nature, where but for particular circumstances a retrial would have been ordered. Conversely if no retrial could have been ordered having regard to the state of the evidence it does not necessarily follow that costs of proceedings other than in the Court of Appeal will be awarded.

36. If there is to be an application for costs then that application should be made upon the judgment of the Court of Appeal being pronounced and in respect of all proceedings for which the order is sought. For the future counsel would be well advised to arm themselves with at least tentative instructions and, if the decision of the Court should come as a surprise to them, they should, if they consider an application for costs to be valid, ask for a short moment to take instruction. The Court will be loath to entertain applications made subsequent to the determination of an appeal.

37. 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.

38. One final point, Mr. Cross has asked us to state that section 83XX only starts to bite if an appellant has his conviction quashed on all counts in an indictment or a charge sheet. We think generally that must be right though we would not wish unduly to fetter that which is said to be an unfettered discretion. There may well be circumstances in which an award of costs either in part or in whole would be proper where some of the convictions are upset and others not.

39. Turning now to the individual applicants and applying the principles which we have enunciated. In respect of Kwok we think he should have the costs of the appeal and of the day specially set aside for argument. In respect of Lok he will have his costs of the appeal, of the day set aside for this argument and of his application for bail pending appeal. In each case the Registrar is directed to ascertain the sum which should include the costs taking judgment.

40. Before leaving this matter we would express our indebtedness to counsel for the assistance we have received.

Representation:

Mrs. Elaine Robertson (So & Karbhari) for Kwok Moon Yan

G. J. X. McCoy, Esq. (Robert W. H. Wang & Co.) for Lok Man Chiu

I. G. Cross, Esq. & W. S. Cheung, Esq. for Crown/Respondent

CACC000347/1988

IN THE COURT OF APPEAL	1988. No. 347
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	KWOK MOON YAN

----------------

Coram: Hon, Silke V.-P., Power & Penlington, JJ.A.

Date of hearing 13 January 1989

Date of delivery of judgment: 13 January 1989

-----------------------

J U D G M E N T

-----------------------

Penlington, J,A. Delivered the judgment of the Court:

1. The applicant was convicted in the District Court by His Honour Judge Leonard on 3 charges of burglary. He now seeks leave to appeal against chose convictions. All charges relate to events on the 24th. November 1987 In relation to the 1st charge there were 3 defendants involved D1, D2 and D3, the applicant being D2. It was alleged that they had entered the Chi Shing Knitting. Factory at Tai Yuen Street as trespassers and stole some 12 boxes of cotton yarn.

2. It is a ground for complaint by Mrs. Robertson who appears for the applicants here that the Charge Sheet in respect of all counts does not indicate to the applicant that the Crown's case was not that he actually entered the building with the other two but that he was the driver of the van into which the goods were either about to be loaded or were to be carried. However we are quite satisfied that the summary of fact served on the applicant does set out precisely what the Crown's case was and, while he was not represented at the beginning of the trial, for whatever reason and certainly later when he was there was no application for an adjournment. The applicant must have been well aware of the case which he had to meet. We do not think there is anything in that ground.

3. The evidence called by the Crown was in outline as follow se Mr. Lo Wah said that he saw 2. men - D1 and D2 - in the factory buildding on the 24th. He saw the men loading 12 boxes into the lift on the 19th floor where there was a factory the Chi Shing Garment Factory. He was suspicious and he left the men to go down on their own in the lift while he went to make enquiries. His suspicions proved justified. He saw to thy proprietor of the factory a Mr. Shunt, and Mr. Shum in turn telephoned down to the ground floor saying that these men should be intercepted. That message was received by Mr. Lee Kin Kwong and he went to the to carpark where he saw two men with 3 boxes. He stopped the men who abandoned the boxes and ran away.

4. A constable PC10513, who was on surveillance duty said he saw the van CF3087, driven by D2 and in which were D1 and D3. The van was parked at the back of the factory building. D1 and D3 got out of the van with a metal cart and went into the building. This was at 11.55 am. The constable went into the building himself and saw D1 and D3 on the 19th floor with 6 cartons. Another constable, 14193, said that at 12.25 p.m. he saw D1 and D3 run out of the building. They gestured towards the van. D2, Who was still in it, drove away from the cul-de-sac in which it was parked D1 and D3 ran after it but is passed them without having stopped.

5. The goods were recovered at the scene.

6. In relation to the 2nd charge, there was clear evidence that D1 and D3 entered the Universal Building. Factory on the 24th November and there they stole tolls of cloth.

7. Mr. So Kwok Ping, the proprietor of the factory, said that he found the goods to be missing at about 11 o'clock. Later on he was asked to go to the Wang Lik Inoustrial Building in Kowloon Bay and he identified his goods there. A woman polite constable, 15166 said that at 1.45 pm on the 24th she saw the same van CF3087 with the same three accused arrive at the Wang Lik Industrial Building. Goods were unloaded by these 3 men and that included a carton, the subject t of this charge. The goods were put onto a trolley and were taken into she lift to the 3rd floor, There the defendants were all arrested

8. It was the Crown's ease in relation to the 3rd charge that the same defendants entered into the Shing Ka Garment Factory at Yue Lam Industrial Building, Kwai Ting Road on the 24th and stole 3 bales of raw cloth V Mr. Hui Kwong, a supervisor of the factory, said that the bales had been delivered on that any and de found them missing at half past one in the afternoon. Be again identified them at the Wang Lik Industrial Building.

9. Constable 14195 said that ac 1310 hours he saw the same van CF3087 parked outside the Yue Lam Industrial Building. He saw D3 come out with a bundle on a cart. He had apiece of pink paper in his mouth . D2 helped him to load the bundle onto the van and this operation was repeated on other two occasions. D1 then cane out from the building and the van was driven off by D2. He followed it, again to the Wang Lik Building, and the goods were found on the 3rd floor.

10. D1 and D3 made statements relating to the offences. The applicant did not but gave evidence. He admitted driving the van and he admitted going into the premises in Kowloon Bay where the goods were eventually found. However he said that he owned the van CF3087 and earned living hiring it out. Part of his normal duties would be also to lend a hand with the loading and unloading.

11. He said that D1 had hired the van, on the 24th November and he produced the copy of a receipt for $300 being the day's hire. The cords for hire were written on, his van. He agreed that the three factories had been visited over lunch time, but, there were people there and lie said he was not surprised when D1 had come out of the factory at Tai Yuen Street empty-handed. He said that the 1st defendant had beckoned to him but he denied that D1 was running at he time.

12. The trial judge considered his evidence and found him to be an unimpressive witness though he did not make any specific finding that he disbelieved him. However it may well be such was implicit in that finding Nevertheless the question is even if he did not believe the applicant, was there sufficient evidence here to justify his coning into the conclusion that D2 was a party to what was clearly an enterprise between D1 and D3 to steal textile goods from these factories and take them to the premises in Kowloon Bay.

13. The judge has carefully set out that he first of all considered each charge separately against the applicant. He also said that he did not take into account the fact that both D1 and D3 had implicated, the applicant in their confession statements.

14. The judge considered the question of the acts of the applicant in relation to the 2nd charge when the other two were clearly surprised while taking the cloth away and gestured to him to get the van out of the scene. He said the act of D1 and D3 in sending the lorry off without boarding it was suspicious, as was the act of D2 in driving it off. He does not however go beyond that. It seems to us that that was really he only evidence that would have justified the finding which the judge reached he went on to say that, as a matter of commonsense, if the other two were engaged on this enterprise of stealing textiles from factories that they would not have brought along someone with them to drive the lorry who was not involved because he knew them and could have been of assistance to the police in identifying them if he had been questioned. He said that on that basis he was satisfied that the applicant must have been a parry to the enterprise.

15. With due respect to the trial judge, we find that that is not a conclusion to which he was entitled to come. It may well be that there was grave suspicion that the applicant was involved in this enterprise. However there was evidence to support his claim that lie was simply the owner and hirer of the van and that he was doing what he was told to do on that particular day. We do not think that the judge was entitled to simply say that the other two would not have brought him along unless he was also involved.

16. The only act pointing towards D2's involvement was the waving off of the van from the factory which the judge did not find was such as to, on its own, convince him that the applicant was guilty.

17. The application is therefore granted. We treat the hearing of the application as the appeal which is allowed and he convictions quashed.

18. Mrs. Robertson instructed by Messrs So & Karbhari for D2, applied for costs. We adjourned that application for full argument

	(R.G. Penlington)
	Justice of Appeal

Representation:

Mrs. Elaine Robertson (So & Karbhari) for the Applicant

I.G. Cross & W.G. Cheung for Crown/Respondent

THE QUEEN v. KWOK MOON YAN AND OTHERS

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