Criminal Law and Procedure — Costs — Successful appeal — Costs of trial — Whether defendant brought suspicion on himself — Costs of application for certificate for purpose of final appeal


(ON APPEAL FROM DCCC NO. 298 OF 2005)

Mr Raymond Pierce, instructed by Messrs Robertsons for the 4th Applicant

Mr Roger Beresford on fiat for Department of Justice for the Respondent

Ma CJHC 


JUDGMENT ON COSTS

Hon Ma CJHC (giving the Judgment of the Court) :

[1] Following a 55‑day trial before H H Judge Fung CDJ (now Fung J) in the District Court, Mr Kevin Egan (the 4th Applicant) was acquitted of two charges of conspiracy (Charges 1 and 3 at trial), and convicted of two charges of attempting to disclose information about the identity of a participant in the witness protection programme (Charges 4 and 5). Notwithstanding the acquittals on the conspiracy charges, the Judge refused the 4th Applicant’s his costs.

[2] The 4th Applicant applied for leave to appeal against conviction and sentence in relation to Charges 4 and 5. This Court, in a judgment handed down on 12 February 2009, by a majority, gave leave to the 4th Applicant to appeal against conviction and allowed the appeal. The convictions on those charges were accordingly set aside. The Court also dismissed, again by a majority, an appeal by the Secretary for Justice (the Respondent) by way of Case Stated regarding the 4th Applicant’s acquittal on one of the conspiracy charges (Charge 1).

[3] Subsequent to the judgment of this Court, by a Notice of Motion dated 11 March 2009, the Respondent applied for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance , Cap. 484 (the HKCFAO) in relation to two questions of law arising out of Charges 4 and 5. These questions were said to be of great and general importance. At a hearing on 25 March 2009, the Court dismissed the application. The Appeal Committee of the Court of Final Appeal has, however, by a decision dated 14 May 2009, given leave to appeal on these points.

[4] The 4th Applicant now applies for orders for costs in his favour in respect of the following : ‑

(1) The trial in the District Court.

(2) His application for bail in the Court of Appeal on 1 August 2006.

(3) The directions hearing before the Court of Appeal on 14 May 2008.

(4) His application for leave to appeal against conviction on Charges 4 and 5 before this Court (and in this context, the 4th Applicant also seeks a certificate for two counsel).

(5) The Respondent’s appeal by way of Case Stated to this Court.

(6) The application for a certificate under section 32(2) of the HKCFAO by the Notice of Motion dated 11 March 2009.

[5] The Respondent does not resist the orders for costs in relation to the matters set out in paragraph 4(2) to (5). Nothing more, therefore, needs be said in relation to these events. We now deal with the two outstanding matters.

Costs of the trial in the District Court

[6] The 4th Applicant seeks an order in relation to the whole of the costs incurred by him at the trial. However, it will be recalled that, regarding Charges 1 and 3 (of which he was acquitted), he was refused his costs by the trial judge.

[7] No appeal lies from a refusal to order costs in favour of an acquitted party in the District Court. The Costs in Criminal Cases Ordinance , Cap. 492 (the CCCO) only provides for an appeal where a party wishes to challenge an order for costs made against that party or where a wasted costs order is made : see section 19. See also : Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 , at 537E. The only procedure by which a refusal to order costs in the District Court may be challenged would appear to be by way of judicial review : see, for example, Cheung Bik Kwong v Attorney General & Anor [1999] 2 HKC 870 . For completeness’ sake, we should just also mention that a possible avenue of appeal against a refusal to order costs in the Court of First Instance would be to the Court of Final Appeal : see section 31(b) of the HKCFAO; Tong Cun Lin at 537E‑H; Chan Tit Shau v HKSAR (2004) 7 HKCFAR 492 .

[8] In the present case, there has been a refusal to order costs in favour of an acquitted party in the District Court. As an appeal to this Court is not possible under the CCCO and no judicial review proceedings have, as far as we are aware, been instituted (in any event no such proceedings are before us), the 4th Applicant cannot be entitled to his costs of trial in the District Court so far as Charges 1 and 3 are concerned.

[9] We now deal with the question of the costs of the trial as they relate to Charges 4 and 5. The 4th Applicant’s appeal to this Court succeeded and his convictions on these charges were accordingly set aside. He now claims the costs of trial under section 9 of the CCCO.

[10] The Respondent resists an order for costs on the basis that the 4th Applicant had brought suspicion on himself : ‑

(1) Charges 4 and 5 related to the attempt to disclose the identity of a witness in the witness protection programme (under the Witness Protection Ordinance , Cap. 564 ) to a reporter of the South China Morning Post. The 4th Applicant was charged with the inchoate rather than the full offence since the witness in question was not, at the time the alleged disclosures were made, strictly speaking, within the witness protection programme.

(2) The particular passage (in the Reasons for Verdict of the Judge in the court below) relied on by the Respondent to resist costs is as follows : ‑

"422. D4 [the 4th Applicant] rang the SCMP and faxed the complaint letter to Carmen Hsu on the night of 13 July and the disclosure of Becky Wong being in the WPP to Magdalene Chow show the active steps taken by D4 to involve the press. He wrote in his letter to the Secretary of Justice that he played the ICAC at their own game by involving the press. Whether it was for exposing the abuse of the ICAC, it did put pressure on the ICAC."

[11] In our judgment, that passage provides no basis to resist an order for costs : ‑

(1) The only aspect in the extract from the Reasons for Verdict that is relevant to the two charges was the alleged disclosure of Becky Wong (the witness) being in the witness protection programme to the reporter from the South China Morning Post (Ms Magdalene Chow).

(2) The Respondent asserts that this disclosure came after a "gagging" order had been made by a judge in the habeas corpus proceedings that was taking place at the time.

(3) The effect of the majority judgment of this Court in relation to Charges 4 and 5 was that the prosecution had not proved that when the 4th Applicant talked to the reporter, allegedly making the said disclosure of the witness being in the witness protection programme, that he actually believed this to be the case. Moreover, it was not clear on the evidence that he had even made such a disclosure in the first place. In legal terms, the 4th Applicant neither had the requisite mental belief nor had the actus reus of the offence been proved.

(4) It cannot be said that the 4th Applicant had brought suspicion on himself. It is to be noted in this context that the 4th Applicant’s version of events (making clear these two points) was disclosed to the Respondent by a letter dated 19 July 2004. The date of the subject matter of Charges 4 and 5 was 15 July 2004.

[12] Accordingly, the appropriate order for costs in relation to the trial is that the 4th Applicant should have his costs insofar as such relate to Charges 4 and 5. It is also appropriate that such costs be taxed, unless agreement is reached by the parties otherwise.

Costs of the Respondent’s application for a certificate under section 32(2) of the HKCFAO

[13] Section 9B of the CCCO states : ‑

"9B. Defence costs on unsuccessful application by prosecutor for a certificate of Court of Appeal or Court of First Instance

Where the prosecutor unsuccessfully applies to the Court of Appeal or the Court of First Instance for a certificate under section 32(2) of the , and the Court of Appeal or the Court of First Instance, as the case may be, is satisfied that the application is without merit, the Court of Appeal or the Court of First Instance, as the case may be, may order that costs be awarded to the defendant."

[14] This provision contains a modification of the rule that, generally in legal proceedings, costs follow the event. The added requirement is that costs can be awarded to a party who successfully resists an application for a certificate under section 32(2) of the HKCFAO, only where the court is satisfied that the application by the prosecution was "without merit".

[15] In our judgment, the application cannot be said to have been without merit. Apart from anything else, the conclusions reached by the majority of this Court in relation to Charges 4 and 5 may yet be reversed by the Court of Final Appeal, and the conclusions of the minority, in turn supported. We would also point to the fact that the Appeal Committee of the Court of Final Appeal has given leave to appeal on the two questions for which the certificate under section 32(2) of the HKCFAO was sought.

[16] The appropriate order for costs in respect of this application is that there be no order for costs.

Conclusion

[17] For the above reasons, we therefore order that the 4th Applicant be given his costs in relation to : ‑

(1) The trial in the District Court insofar as related to Charges 4 and 5.

(2) His application for bail in the Court of Appeal on 1 August 2006.

(3) The directions hearing before the Court of Appeal on 14 May 2008.

(4) His application for leave to appeal against conviction on Charges 4 and 5 before the Court of Appeal (together with a certificate for two counsel).

(5) The Respondent’s appeal by way of Case Stated to the Court of Appeal.

Such costs are to be taxed, if not agreed.

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