VIVIEN FAN AND OTHERS v. HKSAR

FACC Nos6, 7, 8, 10, 11 & 12 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS6, 7, 8, 10, 11 & 12 OF 2010 (CRIMINAL)

(ON APPEALFROM CACC NO. 302 OF 2008)

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Between:

FACC Nos6, 7, 10, 11 & 12 of 2010

VIVIEN FAN
SIMON LAI
FIONA LAM
DONALD KOO
H A RAHMAN
1st Appellant
2nd Appellant
3rd Appellant
4th Appellant
5th Appellant
– and –
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

————-

FACC No.8 of 2010

HONG KONG SPECIAL ADMINISTRATIVE REGION Appellant
– and –
VIVIEN FAN Respondent

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Court : Mr Justice Bokhary PJ, Mr Justice Chan PJ,
Mr Justice Ribeiro PJ, Mr Justice Mortimer NPJ and Sir Thomas Gault NPJ

Date of Judgment: 6 January 2012

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JUDGMENT ON COSTS

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Mr Justice Bokhary PJ:

1. This judgment on costs should be read together with the judgment handed down on 15 July 2011. What was said there need not be repeatedhere.

2. Ms Vivien Fan seeks, to quote from para.9 of her written submissions on costs:

“(1) The full costs of her appeal to the Court of Final Appeal under FACC Nos 6/2010 and 8/2010, including the costs of the applicationsfor leave to appeal of her conviction on Charge 2 (FAMC No 25/2010), and the HKSAR’s application for leave to appeal her acquittalby the Court of Appeal of Charge 1 (FAMC No 30/2010), and the hearing of those applications by the Appellate Committee on 15 September2010, the costs of the mention hearing before Mr Justice Bokhary PJ and the Registrar on 10 June 2011, and costs of all incidentaland preliminary proceedings;

(2) As a result of the Court of Appeal’s Ruling, wherein it awarded Ms Fan two­-thirds (2/3) of her costs of trial, appeal and allpreliminary and incidental proceedings, Ms Fan now applies for the balance of one-third (1/3) of her costs of the trial and appealto the Court of Appeal, and costs of all preliminary and incidental proceedings incurred from the commencement of the proceedings,including: all proceedings in the Magistrates Court before transfer of the proceedings to the District Court, her application forbail pending the appeal hearing, and her application on 7 May 2010, pursuant to s.83B of the CPO, for the reduction of her sentenceon Charge 2;

(3) The costs of this application, including all incidental costs; and

(4) Certificate for two counsel in all proceedings in all courts. (The HKSAR was represented throughout by two counsel.)”

3. Mr Simon Lai seeks, to quote from para.21 of his written submissions on costs:

“i. A costs order to compensate the Appellant for all costs and expenses properly incurred by him in the Court of Final Appeal;in the Court of Appeal; in the trial before the District Court; in the Magistrates’ Court; and all incidental costs thereto; includingall attendances at the offices of the ICAC from the date of arrest. Such costs to be equal to the actual costs incurred unless thereare exceptional reasons for those costs to be taxed down on the basis that they were not properly incurred.

ii. A certificate for three counsel at trial (Edmund Lawson QC (replacing Jonathan Caplan QC prior to trial); Alexander King SC, andjunior counsel Edwin Choy); and

iii. The costs of this application and in preparing for it.”

4. Ms Fiona Lam seeks, to quote from para.1.3 of her written submissions on costs:

“(a) the costs of all proceedings before the late H.H. Judge Mackintosh in DCCC No. 980 of 2006 (including any proceedings preliminaryand incidental thereto),

(b) the costs of the appeal before the Court of Appeal (including bail application and other proceedings incidental thereto),

(c) the costs of all proceedings before the Court of Final Appeal (including the application for leave to appeal, application forcosts and other proceedings preliminary or incidental thereto)

Such costs to be taxed, if not agreed (on a common fund basis in accordance with Section 15 of the Costs in Criminal Cases Ordinance, Cap. 492).”

She seeks those costs with a certificate for two counsel where more than one counsel was engaged.

5. Mr Donald Koo seeks, to quote from para.9 of his written submissions on costs:

“all his costs incurred, i.e. costs of the trial, the intermediate appeal and the final appeal together with all preliminary andincidental proceedings which included any proceedings in the Magistrates Court before transfer of the proceedings to the DistrictCourt and the cost of the bail application pending appeal of the Court of Appeal. In other words, Koo seeks all costs incurred fromthe commencement of the proceedings against him.”

He seeks a certificate for three counsel.

6. Finally, Mr HA Rahman, who was eventually on legal aid, seeks, to quote from para.2 of his written submissions on costs:

(i) His private costs at trial with certificate of two counsel;

(ii) His costs on appeal to the Court of Appeal (his contribution for Legal Aid being HK$15,204.00); and

(iii) His costs on appeal to the Court of Appeal (his contribution for Legal Aid being HK$9,020.00).

7. The prosecution, asserting that all the defendants/appellants had brought suspicion upon themselves, submits that none of them shouldbe awarded any costs in respect of the trial. That assertion is not made out. What the prosecution puts forward in support of itgoes at the most to why the prosecution may have felt it right to prosecute the defendants/appellants. It does not go to show thatany of them had brought suspicion upon himself or herself.

8. As to costs in the Court of Appeal and in this Court, the prosecution submits that the defendants/appellants, if they are awardedany costs at all, should only be awarded costs limited to the points on which they succeeded. There is no reason to impose any suchlimit. It will be remembered that we said that there had been raised on behalf of each defendant/appellant points other than thoseon which it had been necessary for us to act and that it was not to be assumed that those points were without substance.

9. The prosecution resists certificates for three counsel. As we observed in para.11 of the judgment on costs dated 16 November 2010in HKSAR v. Kevin Egan, Andrew Lam v. HKSAR, FACC Nos. 3 and 5 of 2009, “[a]lthough there is no express provision for certifying a criminal case fit for the employment ofany particular number of counsel, it is open to a Court to assist the taxing officer by so certifying.” In all the circumstances,we grant each defendant/appellant the certificate which he or she seeks.

10. As far as the defendants/appellants who have never been on legal aid are concerned – they being Ms Fan, Mr Lai, Ms Lam and MrKoo – we award them costs of and incidental to the proceedings here and in all the courts below – those being the Magistrates’Court, the District Court and the Court of Appeal. The costs here which we award include the costs of and incidental to these writtensubmission on costs. All the costs awarded are to be taxed on the basis indicated in para.9 of the Egan costs judgment, namely on the basis of what appears to the Registrar as reasonably sufficient to compensate the defendants/appellantsfor expenses properly incurred by them.

11. All of what is said in the immediately preceding paragraph applies also to Mr Rahman before he was on legal aid. As to his costson appeal to the Court of Appeal and on appeal to this Court, he is awarded his contributions of $15,204 and $9,020 respectively.

(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge
(RAV Ribeiro)
Permanent Judge

(Barry Mortimer)
Non-Permanent Judge
(Thomas Gault)
Non-Permanent Judge

Written submissions by Mr Michael Blanchflower SC and Ms Chyvette Ip (instructed by Messrs David Lo & Partners) for Ms VivienFan (being the appellant in FACC 6 of 2010 and the respondent in FACC No.8 of 2010)

Written submissions by Mr Ian Winter QC (instructed by Messrs Haldanes) for Mr Simon Lai (being the appellant in FACC No.7 of 2010)

Written submissions by Ms Maggie Wong (instructed by Messrs C S Chan & Co.) for Ms Fiona Lam (being the appellant in FACC No.10of 2010)

Written submissions by Mr Collingwood Thompson QC and Mr Victor Dawes (instructed by Messrs Hastings & Co.) for Mr Donald Koo(being the appellant in FACC No.11 of 2010)

Written submissions by Mr Graeme A Mackay and Ms Jolie Chao (instructed by Messrs Cheung, Tong & Rosa and assigned by the LegalAid Department) for Mr H A Rahman (being the appellant in FACC No.12 of 2010)

Written submissions by Mr Kevin P Zervos, SC and Mr Anthony Chau (of the Department of Justice) for the prosecution (being the appellantin FACC No.8 of 2010 and the respondent in FACC Nos 6, 7, 10, 11 & 12 of 2010)