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When will convicted defendants be ordered to pay the prosecution’s costs?

2017-12-01

Introduction

Recently, the Prosecution decided not to have a third trial for the bribery charge against the ex-Chief Executive of Hong Kong, Mr. Donald Tsang Yam-kuen (“Donald Tsang”) after the jury was unable to reach a majority decision again at retrial. However, the Prosecution applied to court to order Donald Tsang to pay one-third of the legal costs incurred by the Prosecution for his conviction for misconduct in public office. Such application has aroused lots of discussion.

Although not every defendant would be ordered to pay prosecution’s cost upon conviction or after an unsuccessful appeal, the prosecution is entitled to apply for such order under the Costs in Criminal Cases Ordinance (“CCCO”) (Cap. 492 of the Laws of Hong Kong). CCCO and case laws have set out considerations to be taken into account when deciding whether to grant such order.

Order for costs against defendants

Convicted defendants

Under section 11 of the CCCO, when a defendant is convicted by a magistrate, the magistrate may order him to pay the prosecution’s costs, however such order for costs shall not exceed $30,000 unless otherwise agreed or taxed.

When a defendant is convicted of an offence by the District Court or the Court of First Instance, the court may order costs be awarded to the prosecution pursuant to section 12 of the CCCO and there is no prescribed limit on the amount to be paid.

The award of prosecution costs is subject to the discretion of the court, a conviction does not automatically mean an order for costs against the defendant will follow. As a general principle, an award of cost against the convicted defendant must be compensatory not punitive. Since it is prosecution’s duty to prove the case and defendants are entitled to put the prosecution to prove the case against him, costs order should not be made against convicted defendant except in exceptional circumstances. Where the way which the defendant conducted his defence caused the prosecution to incur unnecessary expenditure or the defendant wilfully wasted the court’s time, an order for costs against him might be justified. Such conduct includes refusing to admit undeniable or unimportant facts which caused the prosecution to incur extra cost and intentionally delaying the case etc.

On the other hand, an order for costs may still be made against a defendant who pleaded guilty. Guilty plea is the best mitigating factor, the likelihood of an order for costs will therefore be lower. However, courts will also take into account factors like at which stage the guilty plea was entered, the nature of the offence and investigation expenses incurred. The later the guilty plea was entered into, the more likely an order for costs will be made against the defendant.

Unsuccessful appeal

Defendants who are unsuccessful in the following appeals / applications might be order to pay prosecution costs if the court is satisfied that such case is without merit:

  • appeal to a judge for any conviction by a magistrate;
  • appeal to the Court of Appeal against conviction and/or sentence; and/or
  • apply to the Court of Appeal for leave to appeal against conviction and/or sentence.

Even if an appeal is dismissed, it does not automatically mean an order for costs against the defendant will follow, order for costs would only be made in cases where the court is satisfied that the appeal is without merit, for example the appeal was hopeless or speculative from the outset which should not be pursued in common sense.

Defendant’s ability to pay

The means of the defendant to pay costs is an important consideration. The court has to be satisfied that the defendant has the means to pay before making an order for costs against the defendant.

Appeals against awards of costs

Any defendant subject to an order for costs may appeal against that order pursuant to section 19 of CCCO. Such appeal must be commenced within 21 days of the costs order. However, since an order for cost is a matter of discretion, an appeal is difficult to succeed unless the appellant can prove to the court that wrong principles were applied or irrelevant or prejudicial matters were taken into account.

Donald Tsang’s case

It was reported in the news that the prosecution applied for an order for cost against Donald Tsang based on the grounds that Donald Tsang offered no explanation to the allegations and provided some misleading information to the investigators, notwithstanding that he stated publicly to the media that he would fully cooperate with the investigation, which led to the investigators incurring extra costs to investigate the matter. The legal representatives of Donald Tsang filed written submissions to argue that Donald Tsang was merely exercising his right of silence and should not be penalised for costs by exercising his rights. The Court will give its decision later.

Conclusion

While the accused would like to attempt all possible ways to avoid conviction at court, they should be reminded of the possibility that they may be ordered to pay all or part of the prosecution costs upon conviction or after unsuccessful appeal. The CCCO and case laws have set out general principles to balance between a defendant’s rights in defending himself in criminal proceedings and to compensate prosecution for unnecessary costs incurred. Defendant should not therefore be deterred from pleading not guilty.


For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk                                                             

W: www.onc.hk                                                                   

T: (852) 2810 1212

F: (852) 2804 6311

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

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Senior Partner
Sherman Yan
Sherman Yan
Managing Partner
Olivia Kung
Olivia Kung
Partner
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