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Hksar v Tsang Yam Kuen, Donald

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date06 March 2018
Neutral Citation[2018] HKCFI 491
Judgement NumberHCCC484/2015
Citation[2018] 2 HKLRD 186
Year2018
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC484A/2015 HKSAR v. TSANG YAM KUEN, DONALD

HCCC 484/2015
[2018] HKCFI 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 484 OF 2015

_________________

BETWEEN
HKSAR

and
TSANG Yam-kuen, Donald Defendant

_________________

Before: Hon Andrew Chan J in Court

Date of Hearing: 3 – 4, 6, 9 – 13, 16 – 20, 23 – 27 January, 1 – 2, 6 – 10, 14 – 17, 20, 22 February, 26 – 29 September, 3 – 4, 6, 9 – 13, 16 – 18, 20, 23 – 27, 31 October, 1 – 3, 6 November 2017

Date of Decision: 6 March 2018

_________________

DECISION

_________________

1. The Defendant was convicted after the first trial of one count of Misconduct in Public Office on 17 February 2017 and sentenced to 20 months’ imprisonment. The Prosecution applied for an order of one third of the first trial’s costs in favour of the Prosecution with a certificate for three counsel, to be taxed if not agreed.

General Principle

2. In support of their application, the Prosecution relied on section 12 of the Costs in Criminal Cases Ordinance (Cap 492) (“CCCO”):

“12. Prosecution costs for indictable offences

Where a defendant is convicted of an offence by or before the District Court or the Court of First Instance, the District Court and the Court of First Instance may, in addition to such sentence as may otherwise be passed by law, order that costs be awarded to the prosecutor.”

3. The CCCO deals not only with the prosecution costs for indictable offences but also with summary offences. Since most of the cases reported regarding prosecution costs relate to summary offences, it may be worthwhile firstly to look at section 11 of the CCCO which contains similar wording:

“11. Prosecution costs in summary proceedings

(1) Where—

(a) a defendant is convicted by a magistrate or a magistrate makes an order on complaint in respect of a defendant under the Magistrates Ordinance (Cap 227); or

....

the magistrate may order that costs be awarded to the prosecutor.”

4. Prosecutor is given a wide definition as “any person who lays an information or a complaint or institutes criminal proceedings.” in the CCCO. In other words, it is not confined to the Secretary for Justice but also includes public or statutory bodies, which are often given statutory power in enforcing their own regulations or by‑laws. The obvious examples are the Mass Transit Railway Corporation and the Tate’s Cairn Tunnel Company Limited.

5. Although criminal prosecution is normally instituted by the Secretary for Justice, an individual citizen may also bring private prosecution if he feels aggrieved by the decision of the police or the Secretary for Justice in refusing to investigate or prosecute. In such circumstances, an individual citizen is likewise exercising a constitutional right, his right to assess the court.

6. The CCCO gives the court a very wide discretion in awarding costs subject to the general principles laid down in section 15:

“15. General principles

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;

....

(c) an order as to costs shall be such as a court or a judge considers just and reasonable;

....”

On the face of the statutory scheme, it appears that the courts are intended to enjoy a broad discretion to award costs, after taking into account all relevant circumstances, which no doubt will include the strength of the prosecution case and the conduct of the defendant. One can also discern from the above principles that the power to award costs includes not only costs incurred for the trial hearing but also any matters or proceedings preliminary or incidental to it. In that sense, given the wide definition of prosecutor and the provision in section 15, it seems rather clear that costs incurred by enforcement agencies during their investigation are also recoverable.

7. In this case, information was laid by the Chief Investigator of the Independent Commission Against Corruption (ICAC). As such, any costs properly incurred by the ICAC can form part of the prosecution costs. The only limitation is that it must be compensatory and not punitive in nature. By that I take it to mean any sum over and above that which is reasonably incurred.

8. In HKSAR v Chan Kwok Wah (1999) 1 HKC 697, Chan CJHC (as he then was) held that in order to protect the constitutional right of the defendants, convicted persons should only be ordered to pay the costs in special circumstances. Special circumstances were considered to include among others, the Defendant’s conduct throughout the trial such as putting the prosecution to proof of insignificant matters or undeniable facts.

9. The decision of Chan Kwok Wah was followed by Yeung J (as he then was) in HKSAR v Chan Kwok Hung [2000] 3 HKLRD 389. Yeung J expressed that:

“.... this observation is not meant to be a strait‑jacket approach and an element of discretion or perhaps common sense is called for depending on the facts of each individual case.”

10. Chan Kwok Wah was later approved by the Court of Appeal in HKSAR v Cheng Tak Wai (2002) 4 HKC 458, Mayo VP expressed as follow:

“What emerges from this is the necessity for it to be established that there is some feature of the trial indicating that as a consequence of the way in which the defendant conducted his defence unnecessary or additional expenditure has had to be incurred by the prosecution or that the defendant has wilfully wasted the court’s time.”

11. In that case, the Court of Appeal seems to proceed on the basis that a costs order was punitive in nature without giving any reasoning. In giving judgment of the Court, Mayo VP said:

“Notwithstanding the Judge’s view that an order for the payment of the prosecution’s costs was not part of the punishment imposed upon the applicant, it is difficult to avoid coming to the conclusion that that was exactly what it was.”

I do not believe the mere fact a person is required to pay the prosecution costs can be equated with a penalty for if that be the case, there is no point in enacting section 11 or 12. However, the effect of a costs order may well be punitive given the fact that the defendant would inevitably be worse off financially.

12. This court, of course, is bound by the decision in Cheng Tak Wai. Bearing in mind the compensating nature of a costs order and applying the principles laid down in Chan Kwok Wah, I come to the view that the way the Defendant conducted himself towards the investigation and prosecution in the present case warrants the imposition of a costs order.

The Conduct of the Defence Case

13. After the revelation of his private trips to Macau by the media in February 2012, the Defendant made a number of public statements emphasising that he would fully co‑operate with the ICAC in its investigation. In the “Beautiful Sunday” programme on 26 February 2012, the Defendant, as the Chief Executive of the HKSAR, said the following:

“.... some people said that I have to, er, have to report to the ICAC. I fully understand this. I will definitely and fully cooperate if it is really to be done. No contact has been made with me yet, but I will fully cooperate to go through this so that everyone, everyone will calm himself down, clear of such worries and doubts.

....

I think that there are good procedures in Hong Kong. I am very, very happy to do that because I personally think that I am, at least I myself, in respect of law, I have not treated unfairly .... unfairly, and there isn’t, no exception has been made. The only problem is to relieve, relieve the suspicion of the general public, I am definitely willing – willing to cooperate.”

14. On 1 March 2012, the Defendant, as the Chief Executive of the HKSAR, informed the Legislative Council:

“.... Criticisms have kept emerging everyday on all fronts. I have reflected over the whole thing, trying to figure out why the mass media, Honourable Members and the general public all find such accusations believable.

....

Honourable Members, whether you still trust me, you must never lose confidence in Hong Kong’s system. I give you my word whether in the review of the regulatory system or the investigation by the Independent Commission Against Corruption (ICAC), I shall invariably render my best possible co‑operation.

....

To date, the ICAC has not approached me for any enquiry. I assure Honourable Members that if it does so, I will render my full co‑operation and will not interfere with the investigation.

....

As I said just now, I will co‑operate fully with the ICAC in its follow‑up work. .... Anyway, I have already promised Honourable Members that I will definitely render my full co‑operation.”

15. Between February 2012 and June 2012, the Defendant rendered no assistance to the ICAC during the remainer of his term as the Chief Executive. When the Defendant was approached by the ICAC in October 2013, he exercised his right of silence. Despite his repeated assurance to the public as the Chief Executive that he would render full co‑operation to the ICAC, he gave no assistance whatsoever.

16. When the ICAC was established in 1974 under the Independent Commission Against Corruption Ordinance, the Commission was known in Chinese as “總督特派廉政專員公署”. Its name in Chinese was not a direct translation of its name in English. The difference was made, in all likelihood, to impress upon the vast majority of the local Chinese citizens that the Commission was a trustworthy organisation which reported to no one except the Governor; the...

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