Criminal law and procedure — costs — taxation — guidance for drafting of bills for criminal matters — basis of taxation — appropriate hourly rates — approach where government counsel did work of both solicitor and barrister
The Department of Justice (DoJ) sought a review of the taxation of costs of a criminal appeal by the Registrar under ss. 7–8 of the Costs in Criminal Cases Rules (Cap. 492A, Sub.Leg.) for the purpose of providing guidance for the future drafting of bills in criminal matters.
- For criminal taxation, the common fund basis should apply. Drafters of criminal bills must adopt for reference the hourly rates in the Law Society’s Circular entitled “High Court Taxation – Consolidation Circular – Updated April 2008”. The different bases for taxation only affected the factors to be taken into account for the amounts to be allowed. If the drafter adopted other rates without explanation in the bills, the court would raise requisitions on them (Wing Fai Construction Co Ltd (Costs: Taxation) (2012) 15 HKCFAR 657 applied). (See paras. 9–10.)
- The DoJ could request higher rates for taxation of particular items but must state the reasons for doing so. The costs of government counsel who did the work of both a solicitor and a barrister was one of the factors for consideration. Whether or not to accept such reasons and what the appropriate rates of charge should be were in the court’s discretion. The costs of government lawyers who were treated as barristers and solicitors for the purpose of fees and costs were to be taxed on the same basis as private practitioners (Ling Yuk Sing v. Secretary for the Civil Service  3 HKLRD 722 applied). (See paras. 11–13.)
- A solicitor with higher rights of audience under r. 21(8)(b)(ia) of the Legal Aid in Criminal Case Rules (Cap. 221D, Sub.Leg.) usually had higher seniority. This was by no means comparable to junior government counsel in the present case who had only three years’ post-qualification experience. She could charge for time spent on the work of a solicitor and counsel, but her hourly rate must be reasonable and the burden was, on the common fund basis, on the DoJ. She could not justifiably command the same hourly charge of a partner in a solicitor’s firm of 10 or more years. The indemnity principle of costs applied equally to government counsel (Building Authority v. Business Rights Ltd  3 HKC 247 considered). (See paras. 16–17.)
This was an application by the Department of Justice for a review of a taxation of costs of a criminal appeal by Registrar Lung Kim Wan on 4 August 2017 (see  HKEC 1718). The facts are set out in the judgment.