HKSAR v. CHAN KIN-KEUNG, JOHN

CACC 424/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 424 OF 2013

(ON APPEAL FROM HCCC 323 OF 2012)

________________________

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CACC 444/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 444 OF 2014

(ON APPEAL FROM HCCC 98 OF 2013)

________________________

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HCMA 54/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 54 OF 2016

(ON APPEAL FROM EASTERN MAGISTRACY SUMMONS NO ESS 34657 OF 2015)

________________________

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HCMA 57/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 57 OF 2016

(ON APPEAL FROM KTCC 4740 & 4741 OF 2015)

________________________

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HCMA 65/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 65 OF 2016

(ON APPEAL FROM STS 7172 OF 2015)

________________________

________________________

HCMA 95/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 95 OF 2016

(ON APPEAL FROM FLMP 56 OF 2015)

________________________

________________________

HCMA 350/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 350 OF 2015

(ON APPEAL FROM EASTERN MAGISTRACY CASE

NO ESCC 30 OF 2015)

________________________

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HCMA 427/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 427 OF 2015

(ON APPEAL FROM FLCC 1787 OF 2015)

________________________

________________________

HCMA 429/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 429 OF 2015

(ON APPEAL FROM FLCC 2804 OF 2015)

________________________

________________________

HCMA 618/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 618 OF 2015

(ON APPEAL FROM KTCC 2958 OF 2015)

________________________

________________________

HCMA 675/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 675 OF 2015

(ON APPEAL FROM KCS 13664 OF 2015)

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D E C I S I O N

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Introduction – 11 bills of costs of criminal cases

1.  This Decision is on the costs for the criminal appeals where the Department of Justice (“DoJ”) is the receiving party.  There are altogether 11 bills of costs for taxation.

2.  The issues for discussion are narrow, namely, whether the Court is entitled to demand and DoJ should provide information on the seniority of the government counsel in charge of the appeals for the costs claimed against the appellants.

3.  Since the paying parties were absent in the previous proceedings and the issue was raised by this Court, the paying parties are not present for this hearing.  Mr. J. Lin, Senior Public Prosecutor from DoJ appears before me.

Factual background

4.  The issues above arose out of the following events:

(a)  The appellants lost their appeals at the Court of Appeal and Court of First Instance and by an Order of the Court, they were ordered to pay the costs of DoJ;

(b)  DoJ filed the Notice of Taxation together with the bills of costs and served on the appellants;

(c)  The appellants had given no grounds of objections, or asked for a hearing;

(d)  DoJ applied for taxation of the bills on paper;

(e)  The applications were entertained and the bills were taxed by the Registrar;

(f)  In the course of taxing the bills, the Registrar found that senior government counsel and government counsel were charging $6,000 or $5,000 per hour;

(g)  The Registrar applied the costs for civil taxation on the hourly charges of the legal profession;

(h)  For the time being, the applicable rate of hourly charge, as currently applied by the other courts for taxation for civil litigation is $4,000 per hour for a solicitor over 10 years post qualification experience, subject to adjustment by the court on individual case for special reasons;

(i)  Since there is no information as to the complexity of the matter and the seniority of the government counsel or senior government counsel, the Registrar had raised requisitions with DoJ, asking for information for the seniority of the government counsel;

(j)  DoJ had agreed to adopt $4,000 as the highest level of costs for some of the other bills;

(k)  When the Registrar raised the same requisitions for other bills of similar situations, DoJ asked for a hearing on this issue;

(l)  Hence this hearing.

DoJ’s submissions

5.  DoJ has submitted the written submissions for this hearing.  The following legal principles or reasons in support of its argument are set out:

(a)  The indemnity principle should apply [2];

(b)  The court should apply hourly rate for the government counsel [3];

(c)  The hourly rate for a government lawyer acting as an advocate should be equivalent to a senior partner level for solicitors or even higher [4];

(d)  The taxing authority must have regard to the issue as to whether the costs of the work and disbursement as claimed are reasonably sufficient to compensate the claimant for any expenses properly incurred as claimed.  If there are any doubts as to the reasonableness, the amount must be resolved against the claimant [8];

(e)  The taxing authority has the authority to determine the reasonable amounts and the suggested hourly rates by the Law Society of Hong Kong are not binding on the taxing masters, but the court should adopt such rates in taxation in the absence of any exceptional factors. [9]

Legal basis for taxation of the DoJ’s bills of costs

6.  “16.  Government lawyers are Legal Officers. Under Rule 2(1) their costs are to be governed by Order 62 of the Rules of the High Court.  It is clear from a combined reading of the Legal Officers (Fees and Costs) Rules and Order 62, the costs of government lawyers who are treated as barristers and solicitors for the purpose of fees and costs are to be taxed on the same basis as private practitioners. 17. Order 62 does not have a separate category of rules for the costs of government lawyers.  Hence Order 62 Rule 28(2) which provides that costs are to be assessed on party and party basis are also applicable to the costs of government lawyers.  Rule 32 provides that the scale of costs contained in the First Schedule to Order 62, shall apply to taxation of legal costs in contentious business.  It has been the general practice to apply the hourly rates of solicitors published by the Law Society to the ‘General Item’ (Item 5) in the First Schedule.  The bills rendered by the Department of Justice identified the hourly charge of government lawyer according to his/her seniority in line with the rates prescribed by the Law Society.”  Ling Yuk Sing v The Secretary for The Civil Service & Another [2010] 3 HKLRD 722.

Practice Direction 14.4

7.  Taxation of costs for criminal proceedings is carried out under Practice Direction 14.4 entitled Taxation of Costs in Criminal cases, by the Registrar as the taxing authority. See paragraph 1.2.

8.  Paragraph 2.6: If the taxing authority so requires, the claimant shall supply any further or other particulars, information and/or documents in support of any part of his claim.

Discussion

9.  I have no problem with DoJ’s submissions under paragraph 5.a, b, d, and e.

10.  These principles, which DoJ agree and put forward buttress my reasons for raising the requisitions on the seniority of the government counsel for taxation of the bills.  I simply do not understand why DoJ should refuse to give the information to me as the taxation authority for taxation purpose.  There is no explanation from DoJ, not even today.

11.  I wish to discuss the proposition under paragraph 5.c.  This proposition came from the Decision of The Honourable Mr. Justice Burrell (as he then was) sitting in chambers in The Building Authority v Business Rights Ltd (unreported, HCMP 3805/1993, 28 April 1999).  Mr. J. Lin, the Senior Public Prosecutor had submitted the report of the Court of Appeal on Judicial Review, not of Burrell J’s.  However, this Court of Appeal case has shown that the appellant, which was the paying party, was having a Queen’s Counsel and a junior counsel acting before it.  This explains why Burrell J. (as he then was) had made the statement as he did in his Decision, which is often quoted by DoJ in support of its argument that government counsel should be awarded the highest level of hourly charge, irrespectively who appeared before the court.  This also appears at 62/App/51 of the White Book 2017.

12.  I have to point out that DoJ’s argument relying upon that case has taken the statement out of the context.  I shall set out that part of the Decision at page 9 below:

“I wish to dispel any notion that this judgment suggests that the work of a Government lawyer appearing as an advocate is in any way routine and ordinary. All work in litigation is important from reading the writ when it first arrives to making legal submissions in the Court of Appeal. The work of the advocate conducting the case in Court is at the more important end. It requires special legal knowledge, forensic skills, competence, confidence and experience. It should be paid accordingly. It is at the cutting edge of litigation and should be paid the highest hourly rate regardless of who is appearing. The hourly rate should be equivalent to senior partner level for solicitors or even higher.” (emphasis added)

13.  The background of this case is relevant.  The issue for Burrell J (as he then was) was as set out on page 1:

“The issue in a nutshell is whether or not a lawyer employed by the Department of Justice can claim fees and refreshers for conducting litigation in court on the same basis as a self employed barrister, or whether the costs of such representation in court should be calculated on an hourly basis in the same way that a solicitor would charge.”

14.  The bill of taxation concerned Mr. Wu, who claimed counsel’s brief and refresher for his work as a government counsel.  The learned judge set out the facts on page 2:

“I will briefly set out the history of the matter. In 1993 and 1994 Mr Anthony Wu, who was then a Deputy Principal Crown Counsel and who is now a Deputy Law Officer (Civil), appeared on behalf of the Building Authority on three occasions. He appeared in the District Court in November 1993 and successfully conducted the litigation alone, in October 1993 when he again successfully resisted an application for leave to seek Judicial Review of the District Judge’s decision and finally in May 1994 when he appeared with a member of the junior bar, Mr Philip Dykes, who successfully resisted an appeal in the Court of Appeal in the same case.”

15.  One can see that Mr. Wu appeared before the Court of Appeal as a solicitor, with Mr. Philip Dykes, a junior bar (as he then was) as counsel.  But Mr. Wu had made the preparation himself.

16.  It is within the above factual context that the learned judge had made the remarks.

17.  In any event, simply relying upon Burrell J’s statement extracted from his Decision to say that the same rate of costs for a senior partner of a law firm should apply to a government counsel irrespective of the seniority of the government counsel is, in my view, contrary to common sense and inconsistent with the case of Ling Yuk Sing: “The bills rendered by the Department of Justice identified the hourly charge of government lawyer according to his/her seniority in line with the rates prescribed by the Law Society.”  The White Book should make reference to the Court of Appeal’s Judgment in 62/App/51 of 2017 version.

18.  The exercise of taxation invariably involves assessment of the seven factors set out in Part II of the First Schedule.  See 62/38A of the White Book 2017.  The hourly rates of the government counsel must be the starting point for the Court’s consideration.

19.  The taxing authority will be unable to discharge its duty of taxing the bill without evidence or information from DoJ as to the experience of the government counsel in charge of the items of the bill of costs and the complexities of the case if the charge is above the norm.  DoJ cannot, on the one hand, ask this Court to take into account of the rates of hourly charge of the Law Society predicated upon the years of post-qualification experience, but on the other hand, refuse to supply such information to the Court.

Decisions

20.  For the above reasons, I shall withhold taxing the bills until DoJ has supplied the information on the post-qualification experience of the government counsel involved in the bills of costs and the complexities of the case, if applicable.  I further direct that any future bill of costs of DoJ without such information is incomplete; as such, it will be returned to DoJ by the clerk handling the matter for the information required.

21.  Since the paying parties are not present, there shall no order as to costs for this hearing.