Case Detail

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)

_____________

Between:

	TING JAMES HENRY	Applicant/Appellant
	and
	HKSAR	Respondent

_____________

Coram : Acting Registrar S. Kwang in Chambers

Dates of Hearing : 22 and 23 September 2008

Date of Ruling : 4 November 2008

___________________________________________

RULING ON COSTS OF TAXATION

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1. Pursuant to the Judgment on Costs handed down by this Court on 14 December 2007, the Appellant lodged his bill of costs for taxation on 4 February 2008. With the agreement of both parties, the taxation was initially conducted on papers.

2. On 14 May 2008, after taxing most of the items of the Appellant’s bill of costs on papers, I gave directions for an oral hearing on various items (in particular the counsel’s fees).

3. Apart from those items that I directed for oral hearing, by letter dated 23 May 2008, the Appellant’s solicitors wrote to the court seeking oral hearing on the following three additional issues: -

(a) the Appellant’s costs incurred for obtaining evidence from the Canadian proceedings (Items Nos 463-464 of the bill);

(b) the Appellant’s costs incurred for obtaining expert’s opinion on the point of Human Rights; and

(c) the Appellant’s costs incurred for obtaining opinion from Messrs Grant Thornton.

4. After several adjournments of the hearing to suit the attendance of the counsel of the parties, the outstanding issues on the Appellant’s bill of costs were heard by me on 22 and 23 September 2008.

5. Counsel representing the Appellant indicated in her written submission that the Appellant would not proceed to argue the costs incurred for obtaining expert’s opinion on the point of Human Rights and for obtaining the opinion from Messrs Grant Thornton. As a result, on 22 September 2008, I heard submissions from Counsel for both parties on the following three legal issues while the quantum of the items involved under the bill of costs was heard on 23 September 2008:-

(a) the basis for taxation in this case in this Court;

(b) the entitlement of two leading Counsel and one junior Counsel before this Court; and

(c) the costs incurred for obtaining evidence from the Canadian proceedings.

6. At the end of the taxation, while the Appellant asked for costs of the taxation hearing, in particular the hearings on 22 and 23 September 2008, Counsel for the Respondent objected to costs to be awarded in favour of the Appellant in respect of the hearing on 22 September 2008. It was argued by Mr Martin Hui, Counsel for the Government, that since the Court ruled against most of the points raised by the Appellant at the hearing on 22 September 2008, no costs should be allowed for the Appellant in respect of that hearing. Nevertheless, the Government did not seek costs against the Appellant.

7. On the first legal issue, the Appellant’s counsel argued that since this is a criminal case, the basis for the taxation in respect of the costs incurred in this Court should be taxed under the Costs in Criminal Cases Ordinance. For reasons as stated in a separate ruling, I rejected such argument.

8. Regarding the entitlement of the costs incurred for one Queen’s Counsel, one Hong Kong Senior Counsel and one Junior Counsel appearing before this Court, Mr Hui conceded, subject to the arguments on quantum, to pay the fees for the London silk and the Hong Kong Junior Counsel. The only argument surrounded on whether it is necessary and proper to retain a Hong Kong Senior Counsel in this case. I also ruled against the Appellant on this point to the extent that no fee would be allowed for the Hong Kong Senior Counsel in appearing before this Court for the substantive appeal but I allowed the fees for the Hong Kong Senior Counsel in preparing the Appellant’s case only.

9. The last point concerning the costs for obtaining evidence from the Canadian proceedings is relatively a more simple issue. It only occupied less than one hour at the hearing on 22 September 2008. In the written submission of the Appellant’s counsel, such point affected Items Nos 463-468, 967-1004 of the Appellant’s bill of costs. However, as stated in the Appellant’s solicitors’ letter dated 23 May 2008, only two items (namely 463 and 464) were involved. Upon taking further instructions, the Appellant conceded to argue only the said two items for the purpose of this issue. After hearing the submission of the Appellant’s counsel, Mr Hui has sensibly accepted the relevance of the work involved was relating to the consent summons to adduce further evidence signed between parties on 6 October 2007. Subject to the arguments on the quantum, I ruled in favour of the Appellant that these two items were in principle recoverable.

10. It is apparent from what had transpired at the hearing on 22 September 2008 that the Appellant has failed to persuade me his arguments in most of the issues involved on that day. In the premises, in order to reflect fairly as to the outcome, I agree with the Respondent’s counsel that, while the Appellant is entitled to have the costs of the taxation proceedings, there should be no order as to costs of preparing and attending the taxation hearing on 22 September 2008. On quantum, parties should refer separately to my written rulings as stated in the Appellant’s schedules of additional costs attached to the letter dated 30 September 2008.

11. By now, all the items of the Appellant’s bill of costs have been taxed. Parties should follow the usual directions as stated under paragraph 3 of Practice Direction 14.3 to submit a draft Allocatur to the Court for approval.

(S. Kwang)
Acting Registrar

Miss Maggie Wong and Mr Henry Ho (LCD) instructed by Messrs Chong & Partners, for the receiving party

Mr Martin Hui of the Department of Justice, for the paying party

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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BETWEEN

	TING JAMES HENRY	Appellant
	and
	HKSAR	Respondent

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

Coram: Mr S. Kwang, Acting Registrar in Chambers

Date of Hearing: 22 September 2008

Date of Ruling: 22 September 2008

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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.

(S. Kwang)
Acting Registrar

Miss Maggie Wong and Mr Henry Ho (LCD) instructed by Messrs Chong & Partners, for the appellant

Mr Martin Hui, Senior Public Prosecutor of the Department of Justice, for the respondent

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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.

TING JAMES HENRY v. HKSAR

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Files (3)

	TING JAMES HENRY	Applicant
	and
	HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent