HKSAR v. CHAN KI FUNG
The court exercised its discretion to award the prosecution the quantified costs of preparing written submissions ($3,280.00) because those costs were incurred and not disputed, but limited the award by the defendant's means and excluded any costs for an unnecessary hearing; accordingly the defendant was ordered to...
Source-derived case information.
- Citation
- [2024] HKCFI 664
- Parties
- Prosecution: HKSAR; Defendant: 1st defendant
- Court
- Court of First Instance
- Jurisdiction
- Hong Kong
- Judgment Date
- 1 March 2024
- Case Number
- HCCC196/2021
- Procedural Posture
- Criminal Bail Application and Costs / Post Acquittal Costs Application Following Withdrawal of Bail Application
- Outcome
- Order made that the defendant pay prosecution costs for written submissions in the sum of $3,280.00, payable within six months.
- Legal Topics
- Bail Application Withdrawal, Costs of Prosecution, Ability to Pay, Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HKSAR
Prosecution
1st defendant
Defendant
Procedural Posture
Criminal Bail Application and Costs / Post Acquittal Costs Application Following Withdrawal of Bail Application
Legal Issues
- 1 Whether the prosecution may recover costs incurred in preparing written submissions opposing a withdrawn bail application
- 2 Whether costs should be limited or refused because the hearing was unnecessary
- 3 Whether an award of costs is appropriate given the defendant's means and post-acquittal earning capacity
Ratio Decidendi
The court exercised its discretion to award the prosecution the quantified costs of preparing written submissions ($3,280.00) because those costs were incurred and not disputed, but limited the award by the defendant's means and excluded any costs for an unnecessary hearing; accordingly the defendant was ordered to pay $3,280.00 within six months.
Court Disposition
Order made that the defendant pay prosecution costs for written submissions in the sum of $3,280.00, payable within six months.
Orders
- Defendant to pay the prosecution the sum of $3,280.00 within 6 months of the ruling, namely by 1 September 2024.
Full Case Text
Judgment text and source record
1 paragraphs
bjbj Court Judge Sir Brian Keith in Chambers (Open to public) Date of Hearing: 16 January 2024 Date of Ruling: 1 March 2024 R U L I N G On 4 January 2024 the defendant applied for bail. That application was due to be heard on 16 January. However, before it could be heard, the application was withdrawn. That was on 12 January. That was not surprising. The defendant had been refused bail many times before, and it was not suggested that there had been a material change of circumstances since the previous occasion on which an application for bail had been refused. However, by the time that the application was withdrawn, counsel for the prosecution had already begun to draft her written submissions opposing the application, and when the application was withdrawn, she asked for the date fixed for the hearing of the application not to be vacated, so that she could apply for the costs thrown away. I reluctantly agreed to that reluctantly because I thought that the application for costs could be dealt with on written submissions without a hearing. On the hearing of the application for costs, I ruled that it was difficult to see how the costs incurred by the prosecution in resisting the latest application for bail had not been unnecessarily incurred. My discretion to order the defendant to pay to the prosecution all or part of the costs had therefore been triggered. However, I had to take into account the defendant s means. Any award of costs had to be within his financial capacity to pay. He had been in custody awaiting trial for over three years, and was said to have no savings to speak of. Moreover, his ability to pay in the future would depend on whether he was convicted and sent to prison for a long time or acquitted and therefore released. I therefore adjourned the application for costs until after his trial. However, I added that whatever order I ultimately made, it would not include the prosecution s costs of the hearing on 16 January. I said that to reflect my view that a hearing had not been necessary. The defendant has now been acquitted. I have been informed that the prosecution s costs of preparing the written submissions for resisting the defendant s application for bail amounted to $3,280.00, and that the defendant does not dispute that figure. Now that the defendant has regained his liberty, he has an earning capacity once again, though it will inevitably take some time for him to get back on his feet. I have concluded that he will be able to afford to pay the sum for which the prosecution ask, but I propose to give him a reasonable time in which to pay it. Accordingly, I order the defendant to pay the prosecution the sum of $3,280.00 within 6 months of today, namely by 1 September 2024. (Sir Brian Keith) Deputy Judge of the Court of First Instance High Court Ms. Lisa Remedios, counsel-on-fiat, for HKSAR Mr. Felix Tam and Mr. Leon Chan, instructed by M/s M.C.A. 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