Proper approach to the taxation of an unrepresented defendant’s costs in criminal cases

In 香港特別行政區 訴 秦錦釗 [2024] HKDC 568, the District Court clarified the approach to the determination of costs of an unrepresented defendant who is acquitted after a criminal trial.

The defendant, Mr Chin Kam Chiu (“Receiving Party“) was charged with conspiracy to export unmanifested cargo and money laundering of over HK$3 billion. The Receiving Party was acquitted of the charges after a 97-days trial before HHJ Tam and was awarded costs. In taxation review, the Receiving Party argued, amongst others that, Order 62, rule 28A(3) of the Rules of the District Court (Cap.336H) (“RD”), which caps the costs of an unrepresented litigant at $200 an hour for work to which the costs relate, only applies to taxation proceedings, and as such the taxation master’s exercise of discretion in awarding costs for the criminal trial is not limited by Order 62, rule 28A(3). A cap of $200 would be inconsistent with the court’s discretion in costs proceedings under Part II of Schedule 1 to Order 62.

Master Jocelyn Leung held that the application of Order 62 of the RDC to criminal cases is restricted by the Costs in Criminal Cases Ordinance (Cap.492) (“CCCO“) and Costs in Criminal Cases Rules (Cap.492A) (“CCCR“), and that only Order 62, rules 33 and 34 of the RDC are applicable in review proceedings. As the CCCO and CCCR do not provide that Order 62, rule 28A of the RDC is applicable in criminal cases, no question of any fettering of discretion would arise. The Master also held that the non-applicability of Order 62, rule 28A(3) of the RDC, as explained in 香港特別行政區 訴 郭紅 (unrep., HCMA 164/2016, 31 May 2016) is the correct approach to assessing the costs of unrepresented litigants. As such, the proper guidance to a taxation master’s assessment should be that set out in the section 15 of the CCCO, in particular that the order “shall not be punitive but shall be such sums as appear to a court or judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings”.

On the facts of the case, the Master held that as the Receiving Party was unable to tender sufficient evidence to demonstrate the losses which he incurred and any special circumstances which would justify the adoption of a higher starting point on costs per hour, a costs of HK$200 an hour was adopted as the scale of costs which the Receiving Party is entitled to recover.

Thomas Yeon, instructed by Ho Tse Wai & Partners, represented the Receiving Party.