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HCMA 239/2010
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IN THE HIGH COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
MAGISTRACY APPEAL NO. 239 OF 2010
E E
(ON APPEAL FROM ESS 37069/2008)
F ____________ F
G BETWEEN G
HKSAR Respondent H
H
and
I I
st
TANG KA HUNG 1 Appellant
J ANTHONY BUTT 2nd Appellant J
____________
K K
Before: Hon Fung J in Court
L L
Date of Hearing: 19 October 2010
M Date of Judgment: 12 November 2010 M
_______________ N
N
O
JUDGMENT O
_______________
P P
Q 1. The 1st Appellant Tang Ka Hung is appealing against the Q
order of the Magistrate Mr Wahab in refusing to award full costs of the
R R
proceedings in the Magistrate’s Court.
S S
2. Mr Anthony Butt, counsel here and below, is appealing
T T
against two personal wasted costs orders made by the Magistrate.
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3. The personal wasted costs orders against Mr Butt related to
C
the dismissed application for permanent stay and application for recusal C
(and the review thereof) before the Magistrate.
D D
E 4. Miss Ching, for the Respondent, has not asked for costs E
against the 1st Appellant on the dismissed stay and recusal applications in
F F
the event that the appeal by Mr Butt is successful.
G G
5. As such, I do not see any conflict of interests between Mr Butt
H H
and the 1st Appellant.
I I
6. In the event, I treated the two appeals as separate cases but
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heard together, with Mr Butt acting in person, and as counsel in the 1st
K Appellant’s case. Ms Ching had no objection to this course. K
L L
7. Incidentally, as the 1st Appellant is asking for full costs below
M in the Notice of Appeal, he is taken to be also appealing against the order M
of the Special Magistrate Miss J Ma in refusing the costs of the
N N
adjournment of the original trial (and the review on refusal of costs) by
O reason of late disclosure of unused materials by the Respondent. O
P P
st
8. However, as the 1 Appellant never asked for costs before the
Q Principal Magistrate relating to the issue of witness summonses, Mr Butt is Q
content not to pursue the matter now.
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T T
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The facts
C 9. The 1st Appellant was charged with careless driving. He C
knocked down a tunnel officer with his motorcycle at an exit of the Cross
D D
Harbour Tunnel on 8 June 2008.
E E
10. On 28 November 2008, the 1st Appellant appeared in person
F F
for plea before the Principal Magistrate (Day 1). The trial was fixed before
G Miss J Ma on 29 April 2009. G
H H
11. On Saturday, 27 April 2009, the prosecution served on the
I I
defence a CCTV tape from the tunnel company as unused material. The
tape showed the scene of the accident, but it started about 1 minute late J
J
without showing the accident itself.
K K
L
12. On the trial day of 29 April 2009 (Day 2), Mr Butt asked for L
discovery of the full tape, with an explanation for the incomplete tape.
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Miss Ma granted the application and adjourned the trial, but she refused to
N
award the costs of the adjournment, because the Appellant should have N
notified the Court earlier in order to facilitate listing another case for trial.
O O
Mr Butt applied for a review of the costs order, and it was fixed to be
P heard on 4 September 2009. P
Q Q
13. On 4 September 2009 (Day 3), Mr Butt submitted that the
R defence only received the tape on the afternoon of Saturday, 27 April, and R
the application for disclosure and adjournment was made at the earliest
S S
opportunity on Monday, 29 April. The decision was reserved to
T 10 September 2009. T
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14. Also on 4 September, Mr Butt applied before the Principal
C
Magistrate for two witness summonses, against one Mr Yeung, who had C
st
told a friend of the 1 Appellant that he saw a tape of the accident on
D D
YouTube, and one Mr Tang, the manager of the tunnel company, for the
E explanation of the incomplete tape. The applications were granted. E
F F
15. On 10 September 2009 (Day 4), Miss Ma dismissed the
G review of the costs of Day 2 with similar reasons. G
H H
16. In the meantime, Mr Butt filed an application for permanent
I stay on the ground of non-disclosure of the entire tape. I
J J
17. On 8 October 2009 (Day 5), Mr Wahab, the new trial
K magistrate, held a Pre-trial Review. The Magistrate queried the application K
for stay. He made the comment that by looking at the documents alone,
L L
the defence was complicating a simple matter and the case was getting out
M of control. He said it would be alright to apply for stay if the 1st Appellant M
were funding his own case, but not so if it were funded by the insurers as
N N
the appellant was troubled to come to court so many times. He thought the
O defence lawyers were losing objectivity, and if they were not putting the O
rights of the 1st Appellant first, they should be dismissed.
P P
Q 18. Mr Butt had a conference with the 1st Appellant and his Q
instructing solicitor. Upon instruction, Mr Butt made an application that
R R
the Magistrate recuse himself on the ground that his prejudicial remarks
S had made the 1st Appellant feel pressure not to pursue the stay application. S
The application was refused, and the Magistrate intimated a wasted costs T
T
order against Mr Butt personally.
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19. During the PTR, the Magistrate also queried the two witness
C
summonses granted by the Principal Magistrate and made it clear that he C
would not sign them.
D D
E 20. Subsequently, defence solicitors applied in writing to the E
Principal Magistrate directly and he signed the two witness summonses.
F F
G 21. On 23 October 2009 (Day 6), Mr Butt appeared before the G
Magistrate for a review of the refusal of recusal, and the application was
H H
also refused.
I I
22. On 27 November 2009 (Day 7), the trial commenced. The
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stay application was heard first. The grounds were:
K K
(1) A police officer noted down that he was informed by the
L
tunnel company that there was no CCTV tape; L
(2) Mr Yeung said he saw a tape of the accident on YouTube;
M M
(3) A CCTV tape was disclosed two days before the scheduled
N N
trial but it did not show the accident itself;
O (4) The CCTV logbook did not include the entry for the tape; O
P (5) The course of dealing with the tunnel company showed P
reluctance and delaying attitude in making disclosure and
Q Q
explanations.
R R
23. Mr Butt was driving at foul play and/or impropriety on the
S S
part of the tunnel company, and failure to investigate by the police
T resulting in late discovery of the tape. T
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24. Mr Tang, manager of the tunnel company, gave evidence that
C
the recording for the four CCTV cameras for each direction at each C
entrance/exit would only be turned on upon a report of accident, hence, the
D D
1 minute delay in recording. The logbook entries for other recordings
E showed short durations of a few minutes each, indicating the camera was E
not turned on all the time.
F F
G 25. The clip allegedly seen by Mr Yeung could no longer be seen G
on YouTube. The prosecution tried the keywords “紅隧意外” (Hung
H H
Tunnel Accident) and so forth but there was no such clip on YouTube nor
I endorsement of removal. I
J J
26. The application was dismissed, It took about two hours and
K finished just before lunch. The Magistrate intimated a wasted costs order K
against Mr Butt personally. The trial proper was adjourned to another day.
L L
M M
27. On 11 December 2009 (Day 8), the trial resumed. The injured
tunnel officer gave evidence. He was deployed to that exit of the tunnel N
N
because there was another accident earlier involving a taxi. However, he
O O
did not know how he was knocked down, nor could he remember anything
P
at all. Another driver behind the motorcycle gave evidence, and said the P
1st Appellant overtook his car and cross the lane in the tunnel before the
Q Q
accident. He was driving slowly, at about 55 to 60 KPH, because his wife
R
was pregnant, and the 1st Appellant was faster than him. R
S S
28. The Magistrate found no case to answer as there was no
T evidence on what happened at the time of the accident, and the overtaken T
driver’s evidence on speed was an estimate only.
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29. Mr Butt asked for full costs of the proceedings upon acquittal.
C
The Magistrate adjourned the hearing on costs to another day. C
D D
30. On 18 January 2010 (Day 9), the hearing on costs was further
E adjourned as the Magistrate had no time to deal with the matter. E
F F
31. On 1 March 2010 (Day 10), the hearing on costs was again
G adjourned because the prosecution wanted to put in written submissions. G
H H
32. On 30 March 2010 (Day 11), the Magistrate found Mr Butt to
I be conducting senseless advocacy, and made the following order for costs: I
(1) The respondent do pay the 1st Appellant’s costs for 28 J
J
November 2008 (plea day) and 11 December 2009 (trial);
K K
(2) Mr Butt do pay the Respondent’s costs of and incidental to the
L applications for stay and recusal. L
M M
Relevant provisions
N N
33. Section 3(1)(c) of the Costs in Criminal Cases Ordinance
O (Cap. 492) provides that: O
“(1) Where- P
P
(a) …
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(c) a magistrate dealing with a summary offence or any
offence summarily dismisses the information or
R complaint or acquits the defendant; R
(d) …
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the magistrate may order that costs be awarded to the defendant.”
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34. Section 17 of Cap. 492 provides that:
C “Where at any time in the course of criminal proceedings a court C
or a judge is satisfied that costs have been incurred in respect of
the proceedings by a party to the proceedings as a result of an
D D
unnecessary or improper act or omission by or on behalf of the
other party to the proceedings, the court or the judge may, after
E hearing all such parties, order that all or part of the costs so E
incurred shall be paid to the first-mentioned party to the
proceedings by the other party to the proceedings.”
F F
G 35. Section 18 of Cap. 492 provides that: G
“(1) In any criminal proceedings a court or a judge may order
H H
the legal or other representative concerned to meet the payment
of any wasted costs or any part thereof.
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(2) No order under subsection (1) shall be made unless the
legal or other representative concerned has been given a
J reasonable opportunity to appear before the court or the judge J
and show cause why the order should not be made.
K K
(3) When determining whether or not to make an order under
subsection (1), the court or the judge shall, in addition to all other
L relevant circumstances, take into account the interest that there L
be fearless advocacy under the adversarial system of justice.
M (4) …” M
N N
36. Under section 2 of Cap. 492, “wasted costs” means:
O
O “any costs incurred by a party to the proceedings-
(a) as a result of- P
P
(i) any seriously improper act or omission; or
Q Q
(ii) any undue delay or any other serious misconduct, on
the part of any representative or any employee of a
R representative; or R
(b) which, in the light of any such act, omission, delay or
S S
misconduct occurring after they were incurred, the court
considers it is unreasonable to expect that party to the
T proceedings to pay.” T
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37. Section 19 Cap. 492 provides that:
C “(1) Where a court or a judge has made an order that costs be C
awarded to any of the parties to the proceedings any of such
parties may appeal against that order.
D D
(2) A legal or other representative who has been ordered to
E
meet the payment of any wasted costs or any part thereof may E
appeal against that order.
F (3) …” F
G G
38. Rule 4(2)(a) of the Costs in Criminal cases Rules (Cap. 492A)
H provides that: H
“(1) For the purposes of section 19 of the Ordinance-
I I
(a) any of the parties to the proceedings where a court has
made an order that costs be awarded; or J
J
(b) a legal or other representative against whom the wasted
K costs order is made, K
can appeal-
L L
(i) in the case of an order made by a magistrates’ court, to
the Court of First Instance; and
M M
(ii) in the case of an order made by the District Court or
N the Court of First Instance, to the Court of Appeal N
(2) Subject to this rule-
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(a) Order 55 of the Rules of the High Court shall apply to
an appeal to the Court of First Instance; and
P P
(b) Order 59 of those Rules shall apply to an appeal to the
Q
Court of Appeal, with such modifications as may be Q
necessary to make the same applicable to the
circumstances of the appeal.”
R R
S 39. And O. 59, r. 3(1) of the Rules of the High Court (Cap. 4A) S
provides that:
T T
“(1) An appeal to which this Order applies shall be by way of
rehearing and must be brought by originating motion.”
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Relevant legal principles
C 40. When a defendant had been brought to trial upon particular C
charges and was then found not guilty, he should normally be compensated
D D
out of public revenue for the costs incurred in defending those charges. In
E considering whether, despite that general rule, he should be deprived of all E
or part of his costs, the judge exercising the discretion must look at his
F F
conduct generally, so long as such conduct was relevant to the charges
G faced. Examples of such reasons are: (a) the defendant’s own conduct has G
brought suspicion on himself and has misled the prosecution into thinking H
H
that the case against him is stronger than it is (Tong Cun Lin v HKSAR
I
I [2000] 1 HKLRD 113, 117C – G per Litton NPJ).
J J
41. In R v Johnson Partnership Solicitors [2005] PNLR 12, Scott
K K
Baker LJ observed at para. 8 the followings:
L “In the relevant passage in Archbold, at para. 6.41, reference is L
made to guidance approved in Re: Mintz (Wasted Costs Order)
(The Times, July 16, 1999) by this Court. We refer to the
M M
material aspects of it:
‘(a) there is a need for any judge or court intending to N
N
exercise the jurisdiction to formulate carefully and
concisely the complaint and the grounds upon which such
O an order might be made. The provisions are draconian and, O
as with contempt proceedings, the grounds must be clear
and particular. [That was not done in this case]; (b) Where
P P
necessary, a transcript of the relevant part of the
proceedings under discussion should be available.’
Q Q
Again, that, regrettably, was not done in this case. (c) is not
material for present purposes, but (d) is:
R R
‘A three-stage test was recommended. (i) Had there been
an improper, unreasonable or negligent act or omission? (ii)
S S
If so, had any cost been incurred by any party in
consequence thereof? (iii) If so, should the court exercise
T its discretion to disallow or order the representative to meet, T
the whole or any part of the relevant costs and, if so, what
specific sum was involved?”
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42. In Medcalf v Mardell & ors [2003] 1 AC 120 (HL), Lord
C
Hobhouse observed at p. 143H-144B: C
“… It is the duty of the advocate to present his client’s case
D even though he may think it is hopeless… The position is D
different if the court concludes that there has been improper
time wasting by the advocate or the advocate has E
E
knowingly lent himself to an abuse of process. However, it
is relevant to bear in mind that if a party is raising issues or
F is taking steps which have no reasonable prospect of F
success or are scandalous or are an abuse of process, both
the aggrieved party and the court have powers to remedy
G G
the situation by invoking summary remedies – striking out;
summary judgment; peremptory orders, etc. The making of
H a wasted costs order should not be the primary remedy; by H
definition it only arises once the damage has been done. It
is a last resort.”
I I
J J
Submissions for Mr Butt’s case
K 43. Mr Butt submitted that: K
L
(1) There was no application for wasted costs on the part of the L
Respondent;
M M
(2) The Magistrate failed to formulate precisely the grounds of
N complaints for wasted costs. N
O O
44. On stay, Mr Butt submitted that the application was proper:
P P
(1) The incomplete clip lent itself to reasonable query;
Q (2) It was based on evidence of defence witness notwithstanding Q
he was is believed by the Magistrate upon cross-examination;
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(3) The prosecution had to call rebuttal evidence on the procedure
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of the normal operation of the CCTV system.
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45. On recusal, Mr Butt submitted that the Magistrate’s comments
C
on the propriety of the stay application before listening to the evidence C
st
would give a fair-minded and informed observer an impression that the 1
D D
Appellant would not receive a fair hearing before the Magistrate.
E E
Submissions for the 1st Appellant
F F
46. Mr Butt repeated the propriety of the applications on stay and
G G
recusal as above.
H H
47. On the other hearings:
I I
(1) The adjournment before the Special Magistrate for production
J J
of the tape was made at the earliest opportunity;
K (2) The other adjournments were not due to any fault on the part K
of the 1st Appellant.
L L
M M
Discussions
N 48. The gist of Miss Ching’s argument was that Mr Butt should N
not have proceeded with the stay application upon receiving the
O O
explanation in Mr Tang’s witness statement, and the unavailability of the
P alleged clip seen by Mr Yeung on YouTube. Miss Ching submitted that in P
the absence of the production of the tape as real exhibit, Mr Yeung’s
Q Q
evidence was inadmissible hearsay.
R R
49. As to recusal, Miss Ching submitted that the Magistrate was S
S
merely conducting case management in streamlining the case.
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50. Wasted costs against the legal representative personally is a
C
draconian order. It should only be made on the ground of serious improper C
act or omission, or serious misconduct, not mere lack of wisdom,
D D
discretion or valour.
E E
51. I note that Mr Butt was acting on client’s instruction in
F F
making the stay application, but nevertheless, he must assess the merits of
G the case. No doubt, if the YouTube tape were available and found to be a G
tape from the tunnel company, the imputations on the tunnel company, as
H H
to which the victim was its employee, are very serious. However, it was
I not available. I am not going to resolve the issue of hearsay for the present I
purpose without learned arguments. Suffice it to say that in the
J J
circumstances, Mr Butt should have at least enquired with YouTube as to
K possibility of removal of the clip without traces, if not the recovery of it. K
That had not been done. Given the authorities on the formidable burden to
L L
show that a fair trial could no longer be possible, the application was
M unlikely to succeed on the state of the evidence available. The Magistrate M
could well have made an order for costs unnecessarily or improper
N N
incurred on the part of the 1st Appellant upon refusal of the application.
O O
52. That said, I do not consider that Mr Butt, having acted on
P P
st
instructions from the 1 Appellant, was guilty was serious improper act or
Q serious misconduct, as to which, he personally rather than the 1st Appellant Q
should be responsible for the costs. R
R
S S
53. Hence, the wasted costs order against Butt personally on the
stay is set aside. T
T
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54. As to recusal, case management in criminal proceedings
C
should be approached with care, especially when the matter is fact C
sensitive depending of credibility of the witnesses.
D D
E 55. Be that as it may, the Magistrate did not forestall against the E
stay application per se, as he said it would be alright if the 1st Appellant
F F
were funding the application himself (notwithstanding that I do not really
G see the difference). Hindsight would have counselled more circumspect in G
the comments, but the Magistrate did not delve into evidence ultimately
H H
depending on credibility of the witnesses. The 1st Appellant was not
I actually pressurized as he did proceed with the application. Given the I
merits of the application, it could not be said that an informed and
J J
objective bystander would have concluded apparent bias.
K K
56. Notwithstanding that, it would be a far cry to find counsel
L L
guilty of serious misconduct for making the application for recusal. Hence,
M the wasted costs order against Butt on recusal is also set aside. M
N N
57. The costs of the plea day (Day 1) and trial (Day 8) awarded
O by the Magistrate should stand. O
P P
58. The costs of the adjournment before the Special magistrate
Q (Days 2, 3 and 4) should be to the 1st Appellant. Q
R R
59. As Miss Ching did not ask for costs on the dismissed stay and
S S
recusal applications, there be no order as to costs thereon (Days 5, 6 and 7).
The PTR was held mainly for the stay but was occasioned with the T
T
application for recusal, hence, also no order as to costs.
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60. The adjournment of the costs hearings (Days 9 and 10) were
C
necessitated because the case was not reached. In principal, adjourned C
cases should be accorded priority. There being no reason to the contrary,
D D
the 1st Appellant should be awarded costs of those 2 days.
E E
61. As to the costs hearing itself (Day 11), the issues involved
F F
both the personal wasted costs and the 1st Appellant’s costs upon acquittal.
G The Notice of Appeal only prayed for discharge of the personal costs G
orders against Mr Butt, and costs below be in favour of the 1st Appellant.
H H
Judging from the appeal, the time apportionment between the personal
I wasted costs orders and the 1st Appellant’s own costs should be 2/3 and 1/3. I
The 1st Appellant is substantially successful on the appeal (as he did not
J J
get costs of the failed stay and recusal applications), he should be entitled
K to 11/8 of those costs upon the 1/3 apportionment. K
L L
Conclusion
M M
62. The wasted costs orders against Mr Butt personally are
N discharged. N
O O
st
63. The 1 Appellant is awarded costs below as follows:
P P
(1) Plea day (Day 1) as ordered by the Magistrate;
Q (2) Adjournment of the trial and costs of the review and decision Q
on costs before the Special Magistrate (Days 2, 3 and 4);
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(3) Trial (Day 8);
S S
(4) Adjourned the costs hearing (Days 9 and 10);
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(5) 8/11 of 1/3 of the costs hearing (Day 11).
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Costs on appeal
C 64. Both the 1st Appellant and Mr Butt are entitled to the costs of C
the appeal as prayed for, upon the same apportionment of 1/3 and 2/3. Mr
D D
Butt is wholly successful and should be entitled to full costs of his portion.
E The 1st Appellant is substantially successful and be entitled to 8/11. E
F F
65. The Taxing Master should avoid any double counting
G between Mr Butt and the 1st Appellant. G
H H
I I
J J
(B Fung)
K Judge of the Court of First Instance K
High Court
L L
M M
Ms Ching Wai Ming Jasmine, SPP of Department of Justice, for the
Respondent
N N
Mr Anthony Butt, instructed by Messrs K Y Woo & Co, for the
O 1st Appellant O
P The 2nd Appellant in person, present P
Q Q
R R
S S
T T
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