Re Sutherland (Appeal: Wasted Costs Order)
Court of Appeal
Magistracy Appeals Nos. 685 of 2013 and 425 of 2014
Lunn V-P and Macrae and Pang JJA
15 May 2017

Wasted costs order – defence counsel ordered to pay wasted costs personally for his conduct during trial – principles involved in making wasted costs order – court’s approach

D appeared in the Magistrates’ Court on a charge of indecent assault. He did not give evidence. His instructions to his counsel were that his elbow and hand had slipped and fell to the left accidentally hitting V on the leg while they were sitting next to one another in the cinema. Defence counsel, MS, had been party to the estimate that the trial would last two days. But the trial proper lasted 19 days spanning three-and-a-half months. Eventually, the Deputy Magistrate convicted D. On the prosecution’s application, the Deputy Magistrate made in its favour a wasted costs order of HK$180,000 against MS. MS appealed against the wasted costs order made against him. It was argued on his behalf that upon a correct application of the relevant principles, no such order should have been made. His appeal was reserved by the Court of First Instance to the Court of Appeal.

Held, dismissing MS’s appeal against the wasted costs order, that:

  • It having been raised by the Court of Appeal of its own motion, the question of whether MS’s appeal against the wasted costs order could be referred to, and determined by, the Court of Appeal was answered in the affirmative.
  • The legal principles on the making of wasted costs orders were as follows. An advocate enjoyed privileges before the court, and owed a duty to the court, for which he was bound by standards of professional conduct. As well as being compensatory, the wasted costs jurisdiction was punitive for the purpose of punishing the offending practitioner for failure to fulfil his duty to the court. In order to establish a breach of this duty, it was not necessary to establish dishonesty, criminal conduct, personal obliquity or behaviour such as would warrant striking a barrister off the roll. Equally, mere mistake or error of judgment would not generally suffice. The word “improper” in the definition of “wasted costs” in the Costs in Criminal Cases Ordinance (Cap. 492) (the “CCCO”) covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. It also extended to any conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion, whether or not such conduct violated the letter of a professional code. By the use of the words “seriously” and “serious” in the definition of “wasted costs” in the CCCO, a higher threshold was required under s. 18 of the CCCO when compared with its civil or United Kingdom counterparts. It was not errors of judgment which attracted the exercise of the wasted costs jurisdiction, but errors of a duty owed to the court. Public policy required any court considering making a wasted costs order to take into consideration that advocates should be free to conduct cases in court fearlessly under our adversarial system of justice. Full allowance must also be made for an advocate’s difficulties or limitations in proceedings before a wasted costs order was made against him. A wasted costs order against a barrister personally was a draconian order. It should only be made on the basis of a seriously improper act or omission, or serious misconduct, not mere lack of wisdom, discretion or valour. The Deputy Magistrate considered: (a) whether MS had acted seriously improperly or been guilty of serious misconduct; (b) if so, whether that caused the applicant for a wasted costs order to incur unnecessary costs; and (c) if so, whether it was just in all the circumstances to order MS to compensate the applicant for the whole or any part of the relevant costs. The burden of proof rested on the applicant. It was a civil standard of proof, but the more serious the allegation, the stronger should be the evidence before the court found the allegation established on a balance of probabilities.
  • There was no error in either the Deputy Magistrate’s approach to the relevant legal principles or his application of those principles to the circumstances pertaining to the case (except that the order erred on the side of generosity to MS in that it could have, and should have, been greater).

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