HKSAR v. CHENG CHAK MING, BARTHOLOMEW

HCMA 1101/2003

HEADNOTE

1. What the Court of Final Appeal said in Tong Cun Lin v. HKSAR (1999) 2 HKCFAR 531 about s. 73A of the Criminal Procedure Ordinance, Cap. 221, obviously applies equally to the provisions of the Costs in Criminal Cases Ordinance, Cap. 492, which have replaced that section. 

2. It is an important principle of the common law that the right to silence should be duly respected.  Moreover it is now provided by article 11(2)(g) of the Bill of Rights, which is entrenched by article 39 of the Basic Law, that in “the determination of any criminal charge against him, everyone shall be entitled … not to be compelled to testify against himself or to confess guilt.”  These are considerations to be borne in mind when deciding whether it can be said that a defendant’s own conduct had brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, so that he ought to be deprived of his costs despite his acquittal.  Failing to bear these considerations in mind is to err in principle. 

3. In the normal way, the person in the best position to weigh the matters relevant to whether or not to deprive an acquitted defendant of his costs is of course the trial judge or magistrate.  But where the trial judge or magistrate misapprehended the facts or erred in principle, then an appellate court has to review the refusal.

HCMA 1101/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1101 OF 2003

(ON APPEAL FROM ESCC 1387/2003, ESS 2732/2003 & ESS 2733/2003)

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BETWEEN

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J U D G M E N T

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1. This is an appeal against a refusal to award costs to acquitted defendants.  The 1^st Appellant is an individual while the 2^nd Appellant is a limited company controlled by him.  I will refer to them as “Mr Cheng” and “the Company” respectively.

2. Mr Cheng faced two charges.  Both were brought under the Copyright Ordinance, Cap. 528.  The first was of selling infringing copies of copyright works for the purpose of, or in the course of, a trade or business without the licence of the copyright owner, contrary to s. 118(1)(e)(i) and s. 119(1).  The second was of possession for the purpose of, or in the course of, a trade or business of infringing copies of copyright works with a view to committing an act infringing the copyright in those works without the licence of the copyright owner, contrary to s. 118(1)(d) and s. 119(1).  Both offences were alleged to have been committed on 25 November 2002 at Room 103, 1/F, Fortress Tower, 250 King’s Road in North Point.  The copyright works under each charge were compact disc-roms –– 12 under Charge 1 and 14 under Charge 2. 

3. The Company faced two charges which mirrored the two charges against Mr Cheng.

4.  At their trial before Allan J Wyeth Esquire in the Magistrates’ Court at Eastern, Mr Cheng and the Company each pleaded not guilty, were each found to have a case to answer on each charge, but were both ultimately acquitted on all charges.  No defence evidence was adduced.  But the defendants managed to secure their acquittal on all charges because the Magistrate took the view that they had managed to make out the statutory defence under s. 118(3) of the Copyright Ordinance of not knowing and having no reason to believe that the copies in question were infringing copies.  In acquitting the defendants, the Magistrate said that the evidence of the prosecution’s expert witness was “drawn on by the defence as the statutory defence set out in section 118(3) was developed before the court”.  This included, I was informed, defence counsel putting some documents to the expert in the course of cross-examining him. 

5.  The power of a magistrate to award costs to an acquitted defendant is to be found in s. 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap. 492, which provides that when “a magistrate … acquits the defendant … the magistrate may order that costs be awarded to the defendant.”  This is to be read together with the other two subsections of this section:

“(2) An order for costs under subsection (1) shall not exceed $30,000, unless­

(a) the defendant and the prosecutor have agreed upon the terms of any order to be made by the magistrate for costs exceeding that sum; or

(b) the magistrate, in the absence of any such agreement, orders that those costs be taxed.

(3) The Chief Justice may, with the approval of the Legislative Council, by order, amend the sum specified in subsection (2).”

6.  A magistrate’s refusal to award costs to an acquitted defendant can be appealed to the High Court by virtue of s. 113 of the Magistrates Ordinance, Cap. 227.  That is because a magistrate’s order refusing such costs would come within the words “any … order … of a magistrate in respect of or in connection with any offence” found in subsection (1) of that section.  Section 120 of the same Ordinance provides that on “any appeal to which section … 113 applies, the judge may make such order as to costs, as he thinks fit”.

7.  What the Court of Final Appeal said in Tong Cun Lin v. HKSAR (1999) 2 HKCFAR 531 about s. 73A of the Criminal Procedure Ordinance, Cap. 221, obviously applies equally to the provisions of the Costs in Criminal Cases Ordinance which have replaced that section.  All the other members of the Court of Final Appeal hearing the appeal agreed with the judgment of Litton PJ who said this at p. 535 D-H:

“The legislature in empowering the court to award costs has not laid down the conditions under which the broad discretion under s. 73A(1) should be exercised.  The court must therefore by construction fill the gap.  What then are the governing principles?  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 not-guilty verdict.  The person in the best position to weigh those matters is clearly the judge himself.”

8.  At A-C of the same page Litton PJ approved the practice whereby an acquitted defendant was normally awarded his costs unless there was some positive reason for not doing that.  And he cited a well known example of such positive reason, namely that the defendant’s own conduct had brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was.  The present case does not call for any discussion of such difference as may exist between, on the one hand, a defendant bringing suspicion on himself and, on the other hand, a defendant misleading the prosecution into thinking that the case against him was stronger than it was.  But I am of course aware that in R v. Kwok Moon-yan [1989] 2 HKLR 396 at p. 401 A-C Silke VP, referring to the formula “where the defendant’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”, said:

“We do not view this as meaning that there must be both a bringing of suspicion and a misleading before a successful appellant will be deprived of his costs.  If it is the view of the court that a man has brought suspicion on himself, or having done that, he has also misled the prosecution, either by the very bringing of that suspicion, or some other matter, into thinking the case against him is stronger than it is then these, either separately or combined, are factors which lie for the consideration of the court in the exercise of its discretion.”

9.  It is of course an important principle of the common law that the right to silence should be duly respected.  Moreover it is now provided by article 11(2)(g) of the Bill of Rights, which is entrenched by article 39 of the Basic Law, that in “the determination of any criminal charge against him, everyone shall be entitled … not to be compelled to testify against himself or to confess guilt.”  These are considerations to be borne in mind when deciding whether it can be said that a defendant’s own conduct had brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, so that he ought to be deprived of his costs despite his acquittal.  Failing to bear these considerations in mind is to err in principle. 

10.  In his written “Reasons for Refusing Costs” the Magistrate referred to Tong Cun Lin v. HKSAR and to the unreported decision of Deputy Judge McMahon (as he then was) in HKSAR v. Tsang Chun Chiu, HCMA 409/02, 5 June 2002.  The Magistrate then continued as follows:

“ 16.  The alleged offending took place on 25 November 2002.  All, or at least almost all, the material later to be successfully used in establishing the statutory defence was then within the knowledge and possession of the appellants.  On legal advice the appellants remained silent when charged and cautioned on 25 November.

17. Only almost five months later, on 15 April did the first appellant, again accompanied by his legal representative, present a prepared version of events, together with documentary enclosures (exhibit P22) to the Customs and Excise Department.

18. Given the hitherto unexplained/uncontradicted evidence the department had gathered and the timing, delay and manner of the appellant’s provision of explanations for it, it should have been no surprise that the belatedly and selectively supplied “defence material” did not halt the prosecution.

19. In my view the appellants’ conduct in the course of the investigation was such as to create suspicion, to be resolved by court proceedings.  This passage from Tsang (para. 12, page 5) seemed apposite to me.

“… there is so obvious an explanation for the prosecution case, which is known only to the defendant, that for him to say or do nothing amounts effectively to him deliberately allowing the prosecution to go off on a wild goose chase, where revealing his defence would, at no risk to his own rights or interests, prevent that from happening.”

20. Having considered all the material placed before me on the costs issue I concluded I should exercise my discretion against the tax payer having to fund the appellants’ legal costs.”

11.  On the face of the record, the Magistrate misapprehended the facts in thinking that the Appellants were charged on 25 November 2002 and therefore had only supplied “defence material” to the prosecution almost five months after being charged.  As it happens, Mr Cheng was not charged until 16 April 2003 and the Company was not summonsed until 23 April 2003.  The trial started on 6 August 2003.  I am unable to accept the submission of counsel for the Respondent that the Magistrate’s reference to the timing of the charging should be treated a mere slip or otherwise irrelevant.  Such timing obviously was relevant.  It was important for the Magistrate to be fully aware of the true position as to such timing, but he does not appear to have been aware of it.

12.  In addition to the problem arising out of that misapprehension of the facts on the Magistrate’s part, there is the problem arising out of his approach to the judgment in HKSAR v. Tsang Chun Chiu.  As we have seen, the passage which he quoted from that judgment was not directed to an exercise of the right to silence such as in the present case.  That was an appeal against a magistrate’s refusal to award a defendant costs following his acquittal on a charge of indecent assault.  That indecent assault was alleged to have been committed against a domestic helper during a lesson in the use of a computer to send and receive e-mail.  The facts may be taken from the following paragraphs of Deputy Judge McMahon’s judgment:

“2. Because the alleged assault had commenced immediately following the provable last use of the computer, the prosecution was able to say that the assault must have occurred between 2 p.m. and 2:30 p.m. on the charged date.  According to the evidence of PW1, the assault was serious, continuous and over an extended period of time, so as to substantially occur within that time period.

3. In the course of conducting his defence at trial, the appellant, who was legally represented by experienced counsel, adduced evidence which was accepted by the magistrate that at 2:06 p.m. on the charged date, he had telephoned a friend with his mobile phone and spoken to him for one minute.  That phone call was evidenced by a monthly statement from the appellant’s mobile telephone company.

4. Further, the appellant could show that he used his home telephone between 2:11 p.m. and 2:19 p.m. to pay three credit card bills.  This was proven by uncontested evidence apparently from an officer of the appellant’s bank where he operated a telephone payment service.

5. Finally, the magistrate accepted also that the appellant had used his home phone to telephone his wife’s mobile telephone twice and for several minutes each time at 2:20 p.m. and 2:23 p.m.

6. The magistrate acquitted the appellant of the charged offence of indecently assaulting PW1 primarily on the basis of that evidence.  In this regard, the magistrate said in his Statement of Findings:

‘6. the Defence case was that the Defendant could not at the same time indecently assaulting PW1 and at the same time making phone call to his friend, making payments by phone payment system and having telephone conversations with his wife.  The Defendant denied having indecently assaulted PW1 as alleged or at all. 

7. The defendant was acquitted mainly because of the aforesaid evidence. …’

But the magistrate then, after accepting that costs should generally follow the event, refused to award the appellant the costs of his trial.  The reason which formed the basis of that refusal by the magistrate was that the appellant had not brought to the prosecuting authorities’ attention that part of his defence relating to the telephone calls he had made between 2 p.m. and 2:30 p.m. on the charged date.  The magistrate said in this regard:

‘12. If the Defence had bothered to give explanations to the police or prosecution, this case might not be proceeded with.  The failure to do so caused suspicion to remain pointed at the Defendant.  The prosecution was thus led into thinking that the case against the Defendant was stronger than it was.’”

13.  Those circumstances could be said to involve matters known only to the defendant in that case.  But even so, Deputy Judge McMahon allowed the appeal against the refusal to award costs to the defendant.  Deputy Judge McMahon said the following (in three paragraphs of which the Magistrate in the present case made no mention):

“14.  In other words, it seems to me to be difficult to describe a defendant who merely has not revealed his defence prior to trial, as unreasonably having brought suspicion upon himself or as having misled the prosecution in any way into thinking their case was stronger than it really was.  A defendant is generally entitled not to reveal his case.  He is entitled to remain silent under caution.  It seems to me that to bring suspicion upon himself or to mislead the prosecution in the way required so as to disentitle himself from costs, a defendant would normally have to be shown to have done some positive thing such as lie or prevaricate to the police, or obstruct or mislead their investigation in some active way. 

15.  Merely doing nothing by remaining silent as to an evidential defence the defendant proposes to mount at the end of the day seems me to reflect nothing more than a defendant, no doubt often upon the advice of his legal representatives, acting within the proper parameters of the reasonable conduct of his defence and in accordance with his legal rights.

16.  I might add that if legal representative in taking instructions from a defendant, as to his defence on the merits of a case, were also required to balance how much of that defence to reveal to the prosecutors, and when, so as to avoid their client being disentitled from costs at the end of the day, then their task would become unreasonably difficult.”

14.  In the present case, we do not even have a situation in which the acquittal can safely be said to have turned on matters known only to the defendants.  As I have already mentioned, the Magistrate himself said that the Appellants in the present case made out a statutory defence by drawing on the evidence given by a prosecution witness.  So the defence does not appear to have been made out on matters known only to the defendants.  It is likely that at least some of those matters would have been known to the prosecution.

15.  Counsel for the prosecution placed reliance on the Magistrate’s view that the Appellants had created a suspicion that had “to be resolved by court proceedings”, laying stress on the need for court proceedings.  But this does not help the prosecution unless it can sustain the Magistrate’s view that that suspicion had been created by the Appellants as the Magistrate thought they had.  I do not think that the Respondent can sustain that view.  The Magistrate appears to have misapprehended the facts.  Moreover, I feel drawn to the conclusion that he has failed to have due regard to the right to silence, and has therefore erred in principle.  Court proceedings may have been appropriate, but it is not the law that an acquitted defendant is to be deprived of costs just because the prosecution was not brought unreasonably. 

16.  In the normal way, the person in the best position to weigh the matters relevant to whether or not to deprive an acquitted defendant of his costs is of course the trial judge or magistrate.  But where the trial judge or magistrate misapprehended the facts or erred in principle –– and the Magistrate in the present case did both –– then an appellate court has to review the refusal.  Doing so, I have come to the conclusion, in all the circumstances, that depriving these Appellants of their costs despite their acquittal is not justified.  I allow the appeal and award the Appellants their costs in the Magistrates Court.  I consider it appropriate that these costs should be taxed, and I so order.

17.  I will now hear counsel on the costs of this appeal, the relevant power being the one contained in s. 8 of the Costs in Criminal Cases Ordinance which provides that where “a judge … allows an appeal to which section … 113 of the Magistrate Ordinance (Cap. 227) applies, in the exercise of his powers under section 120 of that Ordinance …, the judge may order that costs be awarded to the defendant.”

[COSTS]

18.  Counsel for the Respondent does not oppose the granting of the costs of this appeal to the Appellants, and I award the Appellants their costs of this appeal to be taxed.