HKSAR v. CHEUNG KA LUN

HCMA 169/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 169 OF 2013

(ON APPEAL FROM TWCC NO. 1297 OF 2012)

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JUDGMENT

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1.  The appellant was acquitted of a charge of ‘trafficking in dangerous drugs’ before a magistrate sitting in Tsuen Wan Magistracy on 16 January 2013. As a consequence of this, an application for costs was made by counsel appearing for the appellant, however such application was refused on the basis of the appellant had brought suspicion on himself.

2.  The appellant appeals against the refusal of the learned magistrate to award costs on the single ground that the learned magistrate erred in the exercise of his discretion in determining that the appellant’s costs ought not to be awarded.

3.  The matter came before this Court on 26 April 2013 when I reserved judgment on the matter to be handed down at a later date.  I now to do so.

4.  The allegation in this trial against the appellant was that on 17 March 2012 he, the appellant, was visiting a prisoner at the Tong Fuk Prison in Lantau Island and had brought with him dangerous drugs concealed with the pages of a magazine and which were destined for the prisoner.

5.  Only one witness was called to testify for the prosecution, a correctional services officer on duty at the time in the visiting room for the prison and responsible for the registration of visitors.  He testified that at the material time, the appellant and another male a Mr Yu, came to the counter and requested to visit two inmates.  Each of them handed in a towel and five magazines for the inmates at the same time.  PW1 asked them to separate the items and he received from the appellant a towel and five magazines together with a form signed by the appellant.  He locked the items in a drawer.

6.  It was an Admitted Fact that on a subsequent check PW1 found a plastic bag containing three tablets which contained 0.03 grammes of midazolam and two tablet fragments containing 0.01 grammes of midazolam and which had slipped out from one of the magazines.  It was also an Admitted Fact that under caution the defendant denied trafficking in dangerous drugs and claimed that the drugs were not his.

7.  Under cross-examination PW1 at first indicated that it was Mr Yu who put the magazines and forms on the desk.  He also said that it was Mr Yu who divided the magazines.  He later on however said that he was not sure. Indeed in relation to this, the learned magistrate said this in paragraph 10 of his reasons for refusal of costs:-

“… For the separation of the magazines, again, he ie PW1, was not sure whether it was one pile or two piles. He was however more likely to accept that it was the other man who divided up the magazines. …”

The learned magistrate went on in paragraph 11 to say this:

“Basing on the quality of PW1’s evidence, I had a doubt as to whether the pile of magazines received by PW1 from the defendant had been tampered by the other male. …”

8.  I find it difficult to rationalize the statement of the learned magistrate that PW1 received the magazines from the defendant when PW1 had clearly indicated in cross-examination that he had received them from the other man, Mr Yu.

9.  But it was the failure of the appellant to “keep an eye on his own property and make sure those items were not tampered with by others” that appears to have persuaded the learned magistrate not to exercise his discretion in favour of the appellant with regard to costs.

10.  Mr Surman in his submissions makes the point that the case for the prosecution always had an inherent problem, in the sense that it could either have been the appellant or the other man Mr Yu who was the culprit, a person who was easily identifiable to the authorities, but who was never investigated.  I agree with this submission.  The appellant was quite properly acquitted, the real question however being was the learned magistrate right not to exercise his discretion in favour of the appellant with regard to costs on the basis that he had brought suspicion on himself.

11.  The general rule as laid down at paragraph 28 in R v Kwok Moon Yan [1989] 2 HKLR 396 is that an award of costs is discretionary and there is no “standard of proof” in the accepted trial sense.

12.  In Tong Cun Lin v HKSAR [2000] 1 HKLRD 113, the Court of Final Appeal stated:-

“14 … When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the non-guilty verdict. The person in the best position to weigh those matter is clearly the judge himself. [emphasis added]”

13.  In HKSAR v Li Siu Tong & Others HCMA 547/2000, Hartmann J (as he then was), found at paragraphs 9, 10 and 13 that:-

“… there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the appellants behaved badly but that their conduct brought suspicion upon themselves in respect of their alleged criminal conduct.”

14.  In my judgment, the learned magistrate did indeed err in the exercise of his discretion.  On the evidence before the learned magistrate it is difficult to see quite how the appellant brought suspicion on himself.  There was certainly no evidence before the learned magistrate to suggest that the appellant did indeed fail to keep an eye on his property when it was placed on the desk either by himself or Mr Yu.

15.  The possibility of slippage from one magazine to another when they were separated (more likely by Mr Yu, on the evidence of PW1) does not appear to have been considered at all by the learned magistrate.

16.  In all the circumstances, I allow this appeal.  I quash the order of the magistrate refusing costs.  I grant costs to the appellant in the court below and this Court, such costs to be taxed if not agreed.