The Court of Final Appeal has granted leave to appeal in HKSAR v Chen Keen (Alias Jack Chen) (陳克恩) [2023] HKCFA 2 in respect of the following questions on the basis that (i) they are points of law of great and general importance and reasonably arguable and (ii) it is reasonably arguable that substantial and grave injustice has been done to the Defendants:-

Question 1: What on the true construction of s.4 of the Costs in Criminal Cases Ordinance (Cap. 492) (“CCCO”), is the meaning of “where a defendant is not tried for an offence for which he has been indicted or committed for trial”?

Question 2: Whether the power to award costs under the said section 4 covers a situation where a defendant’s trial is aborted by reason of the discharge of the jury?

(the “Questions”)

Benson Tsoi (led by Tim Owen KC), instructed by Boase, Cohen & Collins, acted for the 1st Defendant.

The substantive appeal before the Court of Final Appeal will be listed for hearing on 8 May 2023.

On 15 June 2021, a jury was discharged on day 57 of a retrial. The Defendants made an application for costs of the retrial based on, inter alia, s.4 CCCO. S.4 CCCO provides that “Where a defendant is not tried for an offence for which he has been indicted or committed for trial, the District Court or the Court of First Instance may order that costs be awarded to the defendant.

DHCJ Bruce SC held that, inter alia, (i) he had jurisdiction to award costs under s.4 CCCO as the accused becomes “tried” at the conclusion of the trial, whereas the Defendants were undergoing a trial but which had not been brought to a conclusion, and the Defendants are therefore “not tried” within s.4 CCCO; (ii) further, he exercised his discretion in favour of granting costs to the Defendants.

The Court of Appeal (Yuen, M Poon JJA, Barnes J) allowed the Prosecution’s appeal, (i) considering the Chinese text of s.4 CCCO, and holding that (ii) the jurisdiction to invoke s.4 CCCO only arises where there is finality relating to the offences that were indicted or committed. Therefore, s.4 CCCO did not cover the circumstances of the case as the Defendants are “not tried”.

Subsequently, the Court of Appeal granted a certificate certifying that the Questions are points of law of great and general importance.

The judgment of DHCJ Bruce SC can be found here. The judgments of the Court of Appeal can be found here (substantive judgment) and here (judgment granting certificate). The judgment of the Court of Final Appeal can be found here.