To be innocent and be subjected to the burden of legal fees and disbursement in a criminal trial if not recoverable is doubly harsh. Similarly, in convicted cases, one may ponder why should taxpayers pay for the costs of trials. The Hong Kong Costs in Criminal Cases Ordinance Cap 492 provides for statutory discretionary solutions.
Where an information or a complaint laid is not proceeded with, or an accused not committed for trial, or the information or complaint dismissed, or an accused acquitted, or where a magistrate reverses or varies a conviction decision, or confirms such a reviewed decision, the magistrate may order that costs be awarded to the acquitted accused, for an amount not exceeding HK$30,000. The exceptions are that (a) the accused and the prosecutor have agreed upon the terms of any order to be made by the magistrate for costs exceeding HK$30,000, or (b) the magistrate, in the absence of any such agreement, orders that those costs be taxed (s. 3). Where an accused is not tried for an offence (s.4), or acquitted after trial in District Courts or Court of First Instance (s.5), or being charged with the commission of more than one offence is acquitted of one or more than one but not all of any such offences (s.6), or a judge directs that an accused be discharged after committal without a hearing (s.7), or allows an appeal, or in any appeal against sentence imposed by a magistrate, quashes the sentence and in place of it imposes a less severe punishment than that so imposed (s.8), or the Court of Appeal allows an appeal (s.9), or dismiss an appeal by way of case stated (s.9A), or when a prosecutor unsuccessfully applies for a certificate of Court of Appeal or Court of First Instance without merit (s.9B), the judge or Court may order that costs be awarded to the accused.
On the other hand, where an accused is convicted, or where a magistrate confirms a reviewed conviction, a magistrate may order that costs be awarded to the acquitted accused, for an amount not exceeding HK$30,000. The exceptions are that (a) the accused and the prosecutor have agreed upon the terms of any order to be made by the magistrate for costs exceeding HK$30,000, or (b) the magistrate, in the absence of any such agreement, orders that those costs be taxed (s. 11). Where an accused is convicted of an offence in District Courts or the Court of First Instance (s.12), or where an accused, unsuccessfully appeals from any conviction, order or determination of a magistrate, or unsuccessfully appeals to the Court of Appeal against his conviction or any other finding or verdict, or sentence, or unsuccessfully applies to the Court of Appeal for leave to appeal, all without merit (s.13), or where the Court of Appeal reverses the verdict or order of acquittal (s.13A), or when an accused, unsuccessfully applies for a certificate of Court of Appeal or Court of First Instance without merit (s.11B), the judge or Court may order that costs be awarded to the prosecutor.
Where an accused is acquitted on the evidential merit of his case is normally entitled his costs if he has conducted his case reasonably and in accordance with his legal entitlements. The prosecution may oppose an application for costs in particular circumstances such as an accused's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; or there is ample evidence to support a conviction but an accused is acquitted on a technicality which has no merit (HKSAR v Dove & Anor [1998] 1 HKLRF 1790); or an accused had a good and valid explanation which he neglected to bring forward at an early and appropriate moment (Koo Kwok Yee v Secretary for Justice HCAL 102/2010) , or if time was unnecessarily wasted by an accused during the trial. On the other hand, unless there have been special circumstances as a result of which the prosecution incurred additional costs eg an accused being deliberately making difficulties about the prosecution witnesses, or intentionally lengthening the trial, or putting the prosecution to proof of insignificant matters or undeniable facts (HKSAR v Chan Kwok Wah [1999] 1 HKC 697), the prosecution would not apply for costs!