HKSAR v Chan Ching Hei [2026] 3 HKLRD 858, [2026] HKCFI 3712 (Steven Kwan, Lydia Leung)
Steven Kwan, Lydia Leung, and Ernie Tung represented the 1st accused in HKSAR v Chan Ching Hei [2026] 3 HKLRD 858, [2026] HKCFI 3712.
D1 was charged with, inter alia, one count of murder. D1 stood trial with D2. In the first trial, D2’s counsel objected to the prosecutor’s adverse remarks on D2’s failure to give evidence in the closing speech. It was decided that the remarks constituted a material irregularity of the proceedings. As a result, the jury was discharged and a second trial was ordered. After the second trial, D1 was acquitted of murder but convicted of manslaughter by unlawful act. D1 now applied for: (i) costs of the first trial in relation to the murder count; (ii) preparation costs in relation to the murder count; (iii) costs of the second trial in relation to the murder count; and (iv) certificate for three counsel. D1 sought the costs of the first trial pursuant to s.17 of the Costs in Criminal Cases Ordinance (Cap.492) (the CCCO), which conferred a discretion on the court to order a party to pay costs as a result of an unnecessary or improper act or omission by or on behalf of the other party. The prosecution’s case was that: (i) an adverse procedure ruling did not automatically trigger compensable costs; and (ii) even assuming that the prosecutor’s remarks justified the discharge of the jury, it did not follow that the conduct had crossed the s.17 threshold.
Held, allowing D1’s application for the costs for the first trial in relation to the murder count (excluding the costs for the voir dire) and refusing the application under the other heads, that:
(i) Costs of the first trial in relation to the murder count
(1) In discharging the jury, the Court stated that the prosecutor was not merely commenting on the defence’s failure to give evidence, he was also inviting the jury to disbelieve what D2 said to the police when being arrested. In essence, the prosecutor was telling the jury that D2 downplayed his role in the attack and that the jury without his evidence was deprived of the truth and that they did not know D2’s story. Those remarks were not only unnecessary but also improperly made. They constituted material irregularities rendering the order of a retrial (HKSAR v Huang Ruifang (2026) 29 HKCFAR 88 applied). (See paras.11-12.)
(2) The court had to examine the factual matrix of each case individually. In the present case, D1 should have the costs for the first trial in relation to the murder count, excluding the costs for the voir dire . The court had the power to deprive an accused of a portion of the costs if much time was spent on advancing “unmeritorious or unarguable points” during the proceedings. Here, the unsuccessful challenges to the admissibility of the video recorded interview and the video reenactment would not be accorded to D1 as they were totally unnecessary. It was further manifested in the absence of any challenge to their admissibility in the second trial (HKSAR v Chan Kam Ching (No 2) (2022) 25 HKCFAR 181 applied; HKSAR v Au Yeung Lai Hung Doris [2013] 3 HKLRD 586 considered). (See paras.13-14.)
(ii) Preparation costs in relation to the murder count and (iii) costs of the second trial in relation to the murder count
(3) Where a defendant was acquitted of a charge, the court should normally make a costs order in favour of the defendant pursuant to s.5 of the CCCO, unless there was positive reason such as the defendant’s conduct bringing suspicion upon himself. Here, the attack by D1, after the collapse of the deceased bouncer who was still alive at the time, which led to serious injuries on his spleen, fully justified the charge of murder. The justification could also further be seen in light of D1’s conviction of two counts of wounding with intent where the attack was on two other bouncers immediately after. D1 had brought suspicion on himself (Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, [1999] 1 HKLRD 836, HKSAR v Wu Wing Kit [2017] 3 HKC 490 applied). (See paras.20-24.)
(iv) Certificate for three counsel
(4) Certifying a case as fit for more than two counsel required something exceptional, which was not the case here. While this case involved a lot of CCTV footage viewing, that was not uncommon in criminal cases of this kind. No complex legal argument was involved. The whole case turned on factual evaluation of the evidence. D2, who faced one more charge than D1, was only represented by one counsel. The evidence against D2 involved just as much CCTV footage viewing, but D2’s counsel had done his job no less effectively and efficiently. Therefore, the present case did not justify two, not to mention three, counsel (HKSAR v Wu Wing Kit [2017] 3 HKC 490 applied). (See paras.25-28.)
[The above is excerpted from the headnote to the report in HKLRD.]
