ATTORNEY GENERAL v. A DEPUTY DISTRICT COURT JUDGE

HCMP000439/1991

1991 M.P. No.439

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HEADNOTE

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The power to award costs in criminal cases depends entirely upon statute so that the District Court has no inherentjurisdiction to make such an award.

1991 M.P. No.439

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of an Application by the Attorney General for Judicial Review of the Order for costs of His Honour Deputy Judge de Souzamade on 14 November 1990 in Shatin District Court Case No. 44/90

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BETWEEN

Attorney General Applicant
AND
A Deputy District Court Judge Respondent

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Coram: Hon. Jones J. in Court

Date of hearing: 6 June 1991

Date of handing down judgment: 14 June 1991

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JUDGMENT

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1. This is a motion for judicial review by the Attorney General for an order of certiorari to quash an order made by Deputy Judge deSouza in the Shatin District Court on the 14th November 1990, when he made an order for the Crown to pay two days’ costs to the defendantin a criminal trial arising from an application by the Crown for an adjournment. Leave for judicial review was granted by BokharyJ. on the 20th February 1991.

2. The Deputy Judge was not represented before me at the hearing.

3. The facts reveal that the defendant in the criminal proceedings, Mr Wong Chiu-yuen, appeared for trial on the 14th November 1990before Deputy Judge de Souza in respect of a number of charges under the Theft Ordinance, Cap.210. The case was set down for hearing for five days.

4. During the course of the evidence of the first prosecution witness, counsel for the Crown realised that some of the documents tobe produced had not been translated and certified. As a result, an adjournment was sought for the translation and certification workto be done. Although the application was opposed by the defendant, the Deputy Judge made an order for a trial de novo with an orderfor the Crown to pay to the defendant two days’ costs to be assessed by the Registrar if not agreed.

5. Mr Kwok, who appeared for the Crown submitted that jurisdiction with regard to costs is entirely a creature of statute and cannotbe awarded at common law. In support of this proposition, he referred me to two passages from the Privy Council decision in Garnett v. Bradley [1878] AC 944. First at pp.953 and 954 Lord Hatherley said :-

” …..The Common Law Courts were obliged to go back to a legislative enactment in order to arrive at their power, or rather theirduty, for power they had none, of dealing with costs. The Statute of Gloucester, which was passed in the 6th Edw. 1, is the foundationof the Common Law jurisdiction as to costs, and that statute bound the Common Law Judges, so that they could not in any way departfrom the rule that was laid down, that costs followed the event.”

The second citation appears at p.962 where Lord Blackburn had this to say :-

“First of all I will observe that before the Judicature Acts came into operation there was a rule as to costs in Courts of CommonLaw; costs in Equity we are not concerned about. Costs in Courts of Common Law were not by Common Law at all, they were entirelyand absolutely creatures of statute. There had been statutes passed at different times giving costs, some in one case and some inanother, the earliest being the Statute of Gloucester, passed many centuries ago, which gave costs, if I recollect rightly, to demandantswho recovered damages in a real action, which they had not had before. Subsequent statutes were passed at different times givinga Plaintiff a right to recover costs in any action, and there were other statutes passed at different times upon the subject of costsin the Common Law Courts. I think the first that gave costs to the Defendant was as late as James 1., and there were several otherstatutes giving costs, but all those statutes went upon one principle throughout. The result was, that, as a general rule, in everycase in Courts of Common Law the party who succeeded got his costs, whether he was Plaintiff or Defendant, whether he succeeded bya verdict or upon demurrer. I say the general rule established by all those numerous statutes (for there was no one statute whichlaid it down) was that the successful party got his ordinary taxed costs; in other words, that the costs followed the event, andthat the party who was successful had them as a matter of right.”

6. Mr Kwok also cited A.G. v. Ip Wai Kwong [1982] HKLR 93 where Addison J. held that the Court had no inherent power to award costs in criminal cases, its power being entirely dependent uponstatute.

7. I was then invited by Mr Kwok to compare the position in England, although the scheme there is quite different from that in HongKong and cannot, therefore, be applied here. The Costs in Criminal Cases Act 1973 consolidated the law with regard to costs in criminalcases and included specific provisions for awards of costs to be made in the Magistrates Courts, the Crown Court, the DivisionalCourt and the Court of Appeal. This Act has since been repealed and replaced by the Prosecution of Offences Act 1985 in which specificprovisions for costs are set out in Part II of the Act.

8. In respect of criminal proceedings in Hong Kong, specific provisions have been made for awards of costs in the Magistrates Ordinance, Cap. 227 and the Criminal Procedure Ordinance, Cap. 221. In particular, s.20(2)(b) of the Magistrates Ordinance provides that where an adjournment of a hearing is caused by the default of the complainant, the complainant may be ordered to paythe defendant’s costs not exceeding $5,000.

9. The District Court was established in 1953 by the District Court Ordinance, Cap. 336. The general jurisdiction of the court is set out in s.3 which reads :-

“3. (1) A court to be known as the District Court of Hong Kong, is hereby established.

(2) The Court shall be a court of record and shall have such civil and criminal jurisdiction and powersas are conferred upon it by this Ordinance and by any other enactment for the time being in force.

(3) The jurisdiction and powers conferred by any other enactment for the time being in force shall be subject only tosuch limitations as such enactment may provide or may have provided.”

There are no provisions in the Ordinance that relate to costs except s.43 which deals with costs on the transfer of cases from the High Court to the District Court and vice versa.

10. However, two sections in the Criminal Procedure Ordinance also apply to proceedings in the District Court. They are s.34 which contains a provision for costs in respect of a witness summons and s.73A where power is given to award costs in the case of an acquittal.

11. By s.75(1) of the District Court Ordinance, the District Court has similar jurisdiction and powers to the High Court in a trial on indictment. The High Court has power to awardcosts against a person convicted of an indicatable offence under s.72 of the Criminal Procedure Ordinance which power can therefore be invoked by the District Court under s.75(1) of the District Court Ordinance.

12. Mr Kwok also referred to s.9(3) of the Criminal Procedure Ordinance which provides, where relevant, as follows :-

“9. (3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment … applicable thereto,the practice and procedure in all criminal causes and matters … shall be, as nearly as possible, the same as the practice and procedurefrom time to time and for the time being in force for similar cases in England.”

He submitted and I accept his submission that s.9(3) does not confer jurisdiction upon the District Court under s.75(1) as the power in contrast to the discretion to award costs goes to jurisdiction and is not a matter of practice and procedure.

13. The provisions with regard to costs in civil cases set out in s.52A of the Supreme Court Ordinance and O.62 of the Rules of the SupremeCourt are separate from criminal proceedings and do not confer jurisdiction for costs.

14. Having considered the authorities, I am quite satisfied that the power to award costs in criminal cases depends entirely upon statute.As there is no provision in the District Court Ordinance to make an order for costs against the prosecution on the occasion of an application for an adjournment, the order made was nulland void. In making the order for costs, the Deputy Judge exceeded his jurisdiction with the result that there will be an order ofcertiorari to quash the order. No order for costs was sought by the Crown upon this motion.

(B.L. Jones)
Judge of the High Court

Representation:

Mr S.H. Kwok (Attorney General’s Chambers) for Applicant