HKSAR v. HUI RAFAEL JUNIOR ALSO KNOWN AS HUI SI-YAN RAFAEL AND OTHERS

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 NO. 98 OF 2013)

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BETWEEN

HKSAR (香港特別行政區) Respondent
and
HUI Rafael Junior also known as
HUI Si-yan Rafael (許仕仁)
1st Appellant/
1st Defendant
KWOK Ping-kwong Thomas
(郭炳江)
2nd Appellant/
2nd Defendant
CHAN Kui-yuen also known as
Thomas CHAN (陳鉅源)
3rd Appellant/
4th Defendant
KWAN Francis Hung-sang also known as
KWAN Francis (關雄生)
4th Appellant/
5th Defendant

____________

Before : Hon Yeung, Lunn VPP and Pang JA in Court

Dates of written submissions : Respondent – 26 February 2016;
2nd and 4th Defendants – 10 March 2016; and 5th Defendant – 14 March 2016.
Date of Judgment On Costs : 22 March 2016

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JUDGMENT ON COSTS
________________________

Hon Lunn VP (giving the Judgment On Costs of the Court) :

1. Pursuant to the directions of the Court given in the judgment delivered on 16 February 2016, that any application for costs be filedin writing within 14 days, the respondent applied on 26 February 2016 for an order pursuant to section 13 of the Costs In Criminal Cases Ordinance, Cap. 492 for costs of the appeal, including applications for bail, leave to appeal and other incidental proceedings,[1] such costs to be taxed if not agreed, on the basis of what appears to the Registrar as reasonably sufficient to compensate the respondentfor expenses properly incurred.[2] Also, the respondent sought a certificate for three counsel.[3] Further, the respondent sought an order for an apportionment of costs from each of the appellants on the basis of the time and effortthat was directed at addressing the various grounds of appeal.[4]

2. Having set out a justification for the order for the apportionment of costs it sought, the respondent invited the Court to orderthat Thomas Kwok, Thomas Chan and Francis Kwan be ordered to pay 40%, 40% and 10% respectively of the respondent’s cost of theappeal. The respondent indicated that it would have sought an order against Rafael Hui that he pay 10% of the respondent’s costsof the appeal, but did not do so because, “…he is bankrupt and any order for costs would be futile.”

3. By letters to the Court, Thomas Kwok, Thomas Chan and Francis Kwan all stated that they did not oppose the respondent’s application.

Conclusion

4. We are satisfied that the respondent is entitled to the order sought for costs of the appeal and incidental, but related applications. Accordingly, we order that the respondent is to have its costs, to be taxed if not agreed, with a certificate for three counsel,of:

(i) the substantive appeal;

(ii) the separate applications and hearings of the applications for bail pending appeal of Thomas Kwok and Thomas Chan; and

(iii) the joint hearing of the separate applications for leave to appeal of Thomas Chan and Francis Kwan.

5. Further, we are satisfied that it is appropriate to apportion the order for costs in respect of the substantive appeal in the proportionsought by the respondent, namely 40% against each of Thomas Kwok and Thomas Chan and 10% against Francis Kwan.

6. The respondent not having sought any apportionment of the costs of the applications of Thomas Chan and Francis Kwan for leave toappeal, that is a matter to be resolved by the Registrar.

(Wally Yeung) (Michael Lunn) (Derek Pang)
Vice-President Vice-President Justice of Appeal

Mr David Perry, QC, Mr Joseph Tse, SC and Ms Maggie Wong, Counsel on fiat, of the Department of Justice, for the respondent

Davis Polk & Wardwell, for the 2nd appellant (D2)

Morley Chow Seto, for the 3rd appellant (D4)

Simon Ho & Co., for the 4th appellant (D5)


[1] Applications for bail pending appeal: Thomas Kwok – 16 March 2015; Thomas Chan – 28 May 2015; applications for leave to appeal: ThomasChan and Francis Kwan – 8 September 2015.

[2] HKSAR vEgan (No 2) (2010) 13 HKCFAR 689, at paragraph 9.

[3] HKSAR v Egan (No 2): paragraph 11: Litton NPJ:

“…although there is no express provision for certifying a criminal case fit for the employment of any particular number of counsel,it is open to a Court to assist the taxing officer by so certifying.”

[4] R v Masonvale [2010] EWCA Crim 780 (the Court of Appeal of England and Wales, 19 March 2010).