TSANG WAI PING v. HKSAR

FACC No. 12 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 FINAL APPEAL NO. 12 OF 2004 (CRIMINAL)

(ON APPEAL FROM HCCC NO. 233 OF 2003)

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgments of Mr Justice Bokhary PJ and Sir Gerard Brennan NPJ.

Mr Justice Bokhary PJ:

2. This is an appeal against a refusal by the Court of First Instance of the High Court to award an acquitted defendant his costs.  It comes to us directly under item (b) of s.31 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Section 31 deals with the criminal side of our jurisdiction.  Item (a) provides for a criminal appeal to us from “any final decision of the Court of Appeal”.  And item (b) provides for a criminal appeal to us from “any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal”. 

3. Until legislation is passed to remedy the omission, it will remain a matter of regret that no appeal lies to the Court of Appeal from a trial judge’s decision on whether or not to award costs to an acquitted defendant.  As it happens, the present appeal provides us with an opportunity to clarify the applicable principles.  But there can be cases where a trial judge’s decision on such a question will be fit for an appeal to the Court of Appeal although the criteria for granting leave to appeal to us are not met.  And even where such criteria are met, the Court of Appeal’s view on the matter would be of value to us.  A better statutory arrangement than the present one would be for such matters, when taken on appeal, to go to the Court of Appeal and thereafter come to us if, but only if, a second appeal is warranted.  While on this point, I should mention that two appeals from decisions staying a prosecution have reached us (once in 2001 and once in 2003).  It is similarly to be regretted that no appeal lies to the Court of Appeal from a first instance decision on whether or not to stay a prosecution.

4. Turning to the salient facts of the case, they are as follows.  The indictment contained two counts.  Count 1 was of possession of arms and ammunition without a licence.  It was against the appellant and a man named Xu Quanwen.  Count 2 was of taking a conveyance without authority.  It was against the appellant alone.  The appellant pleaded not guilty to both counts.  Mr Xu pleaded guilty to the arms and ammunition count.  That being the only count against Mr Xu, the trial proceeded against the appellant on his own.  In the result the jury unanimously acquitted the appellant on both counts.

5. Whereupon the appellant’s then counsel ( Mr Raymond Yu) applied to the trial judge (Gall J) for costs on his behalf.  Initially Gall J was disposed to think that the appellant should be deprived of his costs on the basis that he had brought suspicion upon himself by exercising his right to silence at a video-recorded encounter at which the police sought to interview him.  This was after he had been told by the police of his right to silence and had received legal advice to exercise that right.  Not surprisingly and quite rightly, Gall J was quickly persuaded that the appellant’s exercise of his right to silence could not be used to deprive him of costs.  That would be so even if the appellant had never protested his innocence to the police at any stage.  As it happens and it is only fair to note, the appellant had in fact earlier said this to the police: “I was responsible for driving only.  I know nothing about the case.  The stuff was brought to the car by the man sitting behind”.

6. The other argument which counsel for the prosecution at the trial (Mr Jackson Poon) urged in resisting costs is that the appellant had brought suspicion upon himself by attempting to flee.  This is how Mr Poon put it:

“	Yes. And one further point I wish to add to that is that is -- the evidence shows that he was trying to escape at that time and even though that -- it could not be used to persuade the jurors to say that he knew about the guns, but when we are considering causes, we are considering if a civil standard. He had raised suspicion upon himself by going onto the pavement and then stopped between the tree and the lorry.
	I would say that that -- he reacted like that -- because of his reaction like that, he brought suspicion upon himself. If he just stopped there and just told the police that he was not involved - he knew nothing about it - then he would be less suspicious.”

The application then took yet another turn when Gall J reacted by saying:

“	Yes. When you come to think of it, it's also a technical exclusion of evidence which you might argue on the limb that a technicality led to his acquittal. I hadn't thought of that. Thank you for raising that.”

7. Mr Yu tried unsuccessfully to dissuade Gall J from looking at it like that.  In his ruling on costs Gall J declined to treat the appellant as having brought suspicion upon himself, but then continued thus to deprive him of costs:

“	Mr Poon raises a second point and that is that the driving of the accused when he was approached by the police was such as to be strong evidence of an attempt to escape. That evidence, I ruled, at the end of the day -- having had to let it run until the accused was in a position to answer it, I ruled before the jury that, as a matter of law, they were unable, given separate consideration of the counts on the indictment, to consider a competing reasonable inference in respect of each count.
	On count one, they had to infer that the attempt to escape, if it existed, was in relation to Count 2 and, in relation to Count 2, they had to infer it was in relation to Count 1. That argument, at the end of the day, is that in respect of one or the other, he was trying to escape but, by virtue of a technicality, the prosecution were precluded in having the jury consider it.
	Mr Yu argues that the accused having been convicted, the jury were not -- having been acquitted, the jury were not made sure by the evidence of the prosecution. And the answer is, well, had they been able to consider the evidence of escape, it's possible that they would have been made sure.
	I must consider costs to the civil standard, not at the criminal standard and, in my view, upon that standard, the accused had the benefit of a technical ruling which, to a large extent, may have occasioned his acquittal.
	The application for costs is refused.”

8. In Ng Yui Kin v. R [1983] HKLR 356 the prosecution argued that the courts of Hong Kong should make it their practice not to award an acquitted defendant costs unless the prosecution should never have been brought.  It was in the course of rejecting that argument that Penlington J said that the courts of Hong Kong should decide such applications in accordance with the practice prevailing in England.  In Tong Cun Lin v. HKSAR (1999) 2 HKCFAR 531 Keith J, who was the trial judge in that case, proceeded on that basis, and his decision was upheld by this Court.  Certain matters are as basic to our system as they appear to be to the English one.  Examples are the idea of costs normally following the event and respect for the presumption of innocence.  On such matters reference to English practice directions can be convenient to our courts.  But neither Tong’s case nor any other case is authority for the proposition that we will always follow the English practice.  The references which I am about to make to English practice directions are made in order to do justice to the arguments addressed to us on those practice directions.

9. When Gall J spoke in the present case about acquittal on a technicality, he must have been thinking of the practice direction issued by Lord Lane CJ on 3 May 1991 reported as Practice Direction (Crime: Costs) [1991] 1 WLR 498.  Para. 2.2 of this practice direction reads:

“	Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order in his favour. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so. Examples of such reasons are:
	(a)	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;
	(b)	there is ample evidence to support a conviction but the defendant is acquitted on a technicality which has no merit.
	Where a person is convicted of some count(s) in the indictment but acquitted on others the court may exercise its discretion to make a defendant's costs order but may order that only part of the costs incurred be paid. Where the court considers that it would be inappropriate that the defendant recovers all of the costs properly incurred, the amount must be specified in the order.
	The court may make a defendant's costs order in favour of a successful appellant: see section 16(3).”

10. That example of acquittal on a technicality was withdrawn long before the charge date in the present case (5 May 2003) let alone the date of Gall J’s decision (11 June 2004).  On 5 October 1999 Lord Bingham of Cornhill CJ issued a practice direction reported as Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832.  Lord Bingham of Cornhill CJ’s 1999 practice direction amended para. 2.2 of Lord Lane CJ’s 1991 practice direction by substituting the following for it:

“

Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order, in his favour. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so, as where, for example, 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.”

11. Lord Lane CJ’s 1991 practice direction as amended by Lord Bingham of Cornhill CJ’s 1999 practice direction has been replaced by the practice direction issued by Lord Woolf CJ on 18 May 2004 which is reported as Practice Direction (Criminal Proceedings: Costs) [2004] 1 WLR 2657.  Para. II.2.1 of Lord Woolf CJ’s 2004 practice direction reads:

“

Where a person is not tried for an offence for which he has been indicted, or in respect of which proceedings against him have been sent for trial or transferred for trial, or has been acquitted on any count in the indictment, the court may make a defendant's costs order in his favour. Such an order should normally be made whether or not an order for costs between the parties is made, unless there are positive reasons for not doing so. For example, where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs. The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified.”

12. Mr Niall Stirling for the appellant rightly recognised that he does not have to go so far as to contend that acquittal on a technicality can never be a valid ground for depriving an acquitted defendant of costs.  It suffices for his purposes that it would not be a valid ground for depriving the appellant of costs in the circumstances of the present case.  This is because what Gall J came to regard as a technicality by the time he ruled on costs was not really a technicality.  It was a direction to the jury based on Gall J’s view on whether flight, if the jury were sure that there was flight, could safely be taken into account against the appellant in the circumstances of the case.  As we have seen, he took the view that it could not, and so directed the jury.

13. As one sees from decisions like those of the Full Court of the Supreme Court of Victoria in R v. Dickson [1983] VR 227, the Court of Criminal Appeal of Queensland in R v. Melrose [1987] 30 A Crim R 332 and our Court of Appeal in R v. Chiu Siu-tung [1996] 2 HKCLR 67, evidence of flight can be relevant even where the accused is being tried on more than one count.  If Gall J rejected that, then he would have been wrong.  What if he accepted that but took the view that it was unsafe in all the circumstances of the present case to invite the jury to consider the question of flight?  The present case does not call for a decision as to whether he would be justified in taking that view.  This is because the basis on which the respondent seeks to support this refusal of costs is not that the appellant was acquitted on a technicality.  Rather it is that, so the respondent argues, the appellant had attempted to flee and had thus brought suspicion upon himself.  That being so, all that I would say on acquittal on a technicality as a ground for depriving an acquitted defendant of costs is as follows.

14. Mr Stirling referred to the Strasbourg jurisprudence on the point.  It includes the decision of the European Court of Human Rights in Minelli v. Switzerland (1983) 5 EHRR 554.  Minelli, a Swiss journalist, wrote an article in a Basel newspaper alleging fraud against a company and a director of that company.  The company and that director brought a private prosecution against Minelli.  But it was terminated before trial by reason of the expiry of a statutory limitation period.  On their view of the probable outcome of the prosecution if it had proceeded to trial, the Swiss courts ordered Minelli to pay part of the court costs and part of the private prosecutors’ costs.  All this came to a total of 1,574.65 Sfrs.  Minelli took Switzerland to the European Court of Human Rights, and succeeded there.  It was held that there had been a violation of the presumption of innocence conferred by art. 6(2) of the European Convention on Human Rights.  And Minelli was awarded 8,688.65 Sfrs against Switzerland by way of reimbursement, costs and expenses in Switzerland and costs and expenses in Strasbourg.

15. It is true that the Swiss courts did more than deprive Minelli of costs and actually ordered him to pay costs.  But the former as well as the latter can violate the presumption of innocence.  And, as we have seen, the award to Minelli made by the European Court of Human Rights was not confined to reimbursement. 

16. An acquitted defendant should not be deprived of costs on the ground that his acquittal was on a technicality if that would violate the presumption of innocence in his favour.  I do, however, think that there can be situations in which an acquitted defendant can be deprived of costs on that ground without violating that presumption.  I would begin by giving the following example.  Suppose a scenario like this.  The bringing of a prosecution for the offence involved requires the prior consent of the Secretary for Justice.  But there is an inadvertent omission to obtain such consent.  The defendant is convicted at trial without anybody noticing the omission.  Then the omission is noticed for the first time.  There is no other good ground of appeal.  But the appellate court acquits the defendant solely on the technical ground of that omission.  It would not violate the presumption of innocence to deprive the acquitted defendant of costs for the reason that he was acquitted on that technicality alone and would otherwise have had his conviction affirmed.

17. A similar situation could arise at first instance.  Suppose the trial is in the Magistrate’s Court or the District Court so that, there being no jury, the tribunal of law and the tribunal of fact are constituted by one and the same person.  There would therefore be no problem, such as could occur in a jury trial, of the tribunal of law deciding on the question of costs without knowing what view the tribunal of fact took on the question of guilt or innocence.  Suppose all the evidence and arguments on the merits have been received, and the court is satisfied beyond reasonable doubt of the defendant’s guilt.  And suppose that the court then realises, just before giving its verdict, that the requisite consent for the bringing of the prosecution has not been obtained.  So an acquittal results.  It would not violate the presumption of innocence to deprive the acquitted defendant of costs for the reason that he was acquitted on that technicality alone and would otherwise have been convicted.

18. In regard to the respondent’s argument that the appellant should be deprived of costs on the basis that he had attempted to flee and had thus brought suspicion upon himself, there was a sharp conflict of testimony as to what had happened at the scene.  On the version of the police officers concerned, it would be proper to conclude that the appellant had driven in an attempt to flee from them knowing that they were police officers and that, even with that knowledge, he had refused to alight when the vehicle was surrounded by them.  But on the appellant’s version, he had innocently driven for the sole purpose of avoiding a high-speed collision and had not had any opportunity of alighting of his own volition before the vehicle’s windows were smashed and he was dragged out by the police officers.

19. The acquittals tend to suggest that the jury had at least a reasonable doubt as to which version is true.  Their view, if any, as to which version is probably true is unknown.  Although he spoke of the civil standard of proof, Gall J made no finding that the police officers’ version is probably true.  Gall J said, as we have seen, that if the jury had been able to consider the evidence of escape, it is “possible” that they would have been made sure of the appellant’s guilt.  That is crucially different from saying that it is probable that they would have been made sure of that.  Gall J also said, as we have also seen, that the ruling “to a large extent, may” have occasioned the appellant’s acquittal.  That is crucially different from saying that it probably occasioned his acquittal.

20. Ms Mary Sin for the respondent invites us to infer that, even though he did not say so, Gall J in fact took the view that the appellant had probably attempted to flee.  Alternatively, Ms Sin invites us to make a finding of our own that the appellant had probably attempted to flee.  Quite apart from any problem with the view itself, there is nothing to justify an inference that Gall J harboured an unexpressed view against the appellant.  As for Ms Sin’s invitation to us to make a finding of our own, the invitation must of course be declined.  Quite apart from anything else, acceding to the invitation would be to embark upon a fact-finding exercise that involves resolving a conflict of testimony properly to be resolved at least in part upon one’s view of the witnesses. 

21. Depending on the circumstances, saying that an acquitted defendant brought suspicion upon himself may or may not involve calling his acquittal into question.  Usually it would not.  In seeking to establish that this appellant brought suspicion upon himself, the respondent contends for a finding that he had probably attempted to flee.  There is no such finding.  Nor ought there to be one.  In the circumstances of this case such a finding would be objectionable on the ground that it would violate an acquitted defendant’s presumption of innocence by calling into question his acquittal by the jury.  Indeed embarking upon the question of whether an acquitted defendant had attempted to flee would in circumstances like these take a judge beyond his province in trial by jury.  This appeal must succeed on the basis that the respondent does not have and should not have the finding upon which it seeks to establish that the appellant brought suspicion upon himself and ought therefore to be deprived of his costs despite his acquittal. 

22. For the foregoing reasons, the appellant should have been awarded his costs below.  It follows that he should also have his costs of coming here to get those costs.  Accordingly I would allow the appeal to award the appellant his costs here and below. 

Mr Justice Chan PJ:

23. I agree with the judgment of Mr Justice Bokhary PJ and the judgment of Sir Gerard Brennan NPJ.  I would only echo the remarks made by Mr Justice Bokhary with regard to the desirability of having an appeal lie in the first place to the Court of Appeal from a decision of a judge of the Court of First Instance in relation to an application for costs by an acquitted defendant or an application for a stay of prosecution.  At the moment, this cannot be done.  Serious consideration should be given to reviewing and possibly amending the relevant provisions of the Criminal Procedure Ordinance, Cap. 221 to enable such an appeal to be instituted.

Mr Justice Ribeiro PJ:

24. I agree with the judgments of Mr Justice Bokhary PJ and Sir Gerard Brennan NPJ.

Sir Gerard Brennan NPJ:

25. I have had the benefit of reading in draft the reasons for judgment of Mr Justice Bokhary PJ.  I respectfully agree with those reasons but would add some observations about the application of the principles expressed by this Court in Tong Cun Lin v. HKSAR (1999) 2 HKCFAR 531.  The Court was there considering the exercise of the costs discretion under s.73A(1) of the Criminal Procedure Ordinance, Cap. 221.  That provision, like s.5 of the Costs in Criminal Cases Ordinance, Cap. 492, conferred a wide discretion on a trial judge to award costs to an accused person who was acquitted after a trial. 

26. Litton PJ who delivered the judgment of the Court referred to the English Practice Direction (Costs: Successful Defendants) [1973] 1 WLR 718 as giving some guidance in the exercise of the discretion.  But Litton PJ did not treat the Practice Direction as a definition of the scope of the discretion to award costs, much less as a statute prescribing the occasions when costs are to be refused.  The overarching principle was expressed in a passage of the judgment under the heading “The governing principle” which prescribed the approach to be taken when refusal of a costs order is under consideration.  His Lordship said:

“

Since, … 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.”

27. The discretion is to be exercised having regard to the defendant’s conduct “during the investigation and at the trial” but the judge must not take a view of the facts “palpably different from that taken by the jury”. 

28. A jury’s view of the facts can seldom be ascertained precisely.  Most verdicts are opaque, that is, they convey no more than that the jury was not satisfied to the required standard of proof that all the elements of the offence charged occurred or existed.  Except in some cases where particular elements or facts are admitted or are not otherwise in contest before the jury, it is impossible to identify which view of the facts led the jury to acquit.  Where there are more than a single issue in the case, it would be most unusual for the ground of acquittal to be identified.  A verdict of acquittal must be interpreted as negativing some or all of the elements of an offence which the prosecution bore the burden of proving.  This follows from the jury’s constitutional function as finder of the facts and the jury’s duty not to convict unless satisfied beyond reasonable doubt of the occurrence or existence of each of the elements of the offence charged.  Thus the common law accords with the provisions of art. 11(1) of the Bill of Rights.

29. It follows that it would be an exceptional case where a trial judge could go behind an opaque verdict of acquittal by making a finding on a fact or issue that was in contest before the jury.  Generally speaking, a judge cannot know whether such a finding is “palpably different from that taken by the jury and reflected in the not guilty verdict”.  The verdict thus constrains the findings of fact which a judge might make in exercising the costs discretion adversely to the person acquitted to facts which are admitted or which were otherwise not in contest before the jury.  Allowing for those exceptions, the judge is precluded from acting on an assumption as to the factual basis of an acquittal.

30. It would be a rare case indeed in which material relevant to an acquitted person’s conduct that was admissible but was not tendered in evidence could lead a judge to refuse an order for costs.  If the evidence was available, the person acquitted could not be held responsible for its non-admission.  In the present case, Gall J had held that evidence of the appellant’s swerving on to the footpath was not to be considered by the jury.  The appellant cannot be refused costs because the evidence was excluded from the material on which the verdict was returned.  Of course, if a defendant improperly prevented evidence from becoming available, there would be clear grounds for refusal of a costs order. 

31. The refusal by Gall J to make a costs order was founded on the view that the appellant’s driving on to the footpath was an attempt to flee from the police.  That view was contested by the appellant who maintained that he swerved to avoid an oncoming vehicle and who, when his passage was blocked by the tree, surrendered completely.  At his initial questioning, he informed the police “I was not concerned, I was innocent” and gave an account of how he came to be driving the car.  The jury may well have believed that evidence or at least have accepted the possibility that it might be true.  It would not, on that hypothesis, have been open to the trial judge to exercise his discretion on the basis that the appellant had been attempting to flee. 

32. There was evidence of the appellant’s innocent involvement in the events leading to his being charged.  There was evidence that may also have engendered a doubt about the veracity of the prosecution evidence.  Thus the acquittal could be explained by the jury’s acceptance of the truth or of the possibility of the truth of the defence case.  The judge could not properly proceed on any other footing.  His Lordship was in error in speculating that the jury might have convicted if they had been permitted to consider the evidence of the appellant’s swerving on to the footpath.  That speculation does not give full effect to the verdict of acquittal. 

33. There is no “positive reason for making a different order” from an order in the appellant’s favour to adopt the criterion expressed in the English Practice Direction.  It follows that, in lieu of the order set aside, an order should be made awarding the appellant costs of the criminal trial.  He should also have the costs of the application for costs before Gall J and the costs of this appeal. 

Chief Justice Li:

34. The Court unanimously allows the appeal and awards the appellant his costs here and below.