HKSAR v. WONG TAK KEUNG

FACC No. 8 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2014 (CRIMINAL)

(ON APPEALFROM CACC NO. 220 OF 2011)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ:

1.  This is the judgment of the Court on costs. 

2.  The Court allowed the appellant’s appeal and quashed his conviction for conspiracy to traffick in a dangerous drug.[1]  It did so on the basis that the evidence did not support the inference contended for by the prosecution that the appellant had been a party or had become a party to the conspiracy to export the drug as it was hatched and implemented in Hong Kong.  It furthermore held that the appellant’s conduct involving the inflicting of severe beatings and torture on the 15 year old drug courier, reprehensible though it was, was not indictable in Hong Kong as it had occurred exclusively in Australia.  It was accordingly not conduct capable of sustaining the conspiracy charged, the Court indicating that there was in the result, no case to answer.

3.  The appellant now seeks an order that he be paid the costs of (i) the trial in the Court of First Instance; (ii) the appeal before the Court of Appeal; (iii) the application to the Court of Appeal for certification with a view to an appeal to this Court; (iv) the application to the Appeal Committee for leave to appeal to this Court; and (v) the appeal in this Court. 

4.  The respondent does not resist an order for costs in respect of the proceedings in (iii) to (v), but disputes costs regarding (i) and (ii).

The principles as to costs in criminal proceedings

5.  Orders for costs, including costs in the courts below, are of course within the discretion of the Court.[2]  The principles guiding the exercise of such discretion have been developed in a series of decisions of this Court.

6.  Thus, in Tong Cun Lin v HKSAR,[3] Litton PJ held that a defendant who is acquitted at the trial should normally be compensated out of the public revenue for the costs incurred in defending himself.  The discretion to deprive him of such costs remains but, since it must be exercised in the context of an acquittal, the grounds relied on for such deprivation must not be inconsistent with the jury’s verdict and must not be such as to impugn the defendant’s presumption of innocence which remains intact. 

7.  As pointed out for instance in Tsang Wai Ping v HKSAR,[4] particular care must be exercised before purporting to refuse costs on the basis that the defendant was acquitted “on a technicality”.  Plainly, it is never open to the court to refuse costs on the basis that the defendant should have been convicted.[5] 

8.  The tendency has accordingly been for costs orders in favour of acquitted defendants to be resisted on grounds which do not seek to go behind the jury’s verdict as it may fairly be interpreted (opaque as such verdicts often are).  The focus often is on whether the defendant had “brought suspicion on himself” by his conduct during the investigation or by the way in which he conducted his defence at the trial.[6]

9.  It is however important to bear in mind that the abovementioned cases are all cases where the defendant was acquitted at the trial.  The position is somewhat different where the defendant was initially convicted but subsequently has his conviction quashed on a point of law.  In such cases,[7] grounds for refusing costs may arise out of the conduct with which the defendant was charged and the general setting of such conduct without in any way undermining the jury’s findings.  Thus, in Ting James Henry v HKSAR (No 2),[8] after referring to the general rule as laid down in Tong Cun Lin, Li CJ stated:

“...as Litton PJ went on to make clear, this general rule, does not mean that a defendant cannot be deprived of all or part of his costs, due to his conduct generally ‘… so long as such conduct is relevant to the charges he faced’ (see p.535).”[9]

10.  His Lordship continued:

“It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionary exercise. However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”[10]

11.  The Court quashed the defendant’s conviction but, as Li CJ pointed out:

“ ... the jury had clearly found, as the Court of Appeal also made clear, that the appellant had been dishonest in a way relevant to the counts charged. The Court of Appeal’s decision to overturn the convictions was not, in any way, inconsistent with the jury having so found. The convictions were only set aside because the Court of Appeal considered there had been a misdirection. A misdirection which was not inconsistent with the finding of dishonesty. This is not a case which, in Sir Gerard Brennan NPJ’s words, the Court of Appeal were taking a view of the facts ‘palpably different from that taken by the jury’. On the contrary the reasoning of the Court of Appeal involves that court taking the same view of the facts as the jury. Nor in our judgment does the decision of the Court of Appeal involve any contravention of the presumption of innocence or Art.11 of the Hong Kong Bill of Rights. The appellant is, and is entitled to be regarded as being not guilty of the counts on which he was found guilty despite the verdict of the jury. However, this does not mean that he was not dishonest in the way relied upon by the prosecution. The issue of dishonesty or not, was clearly left to the jury and was separate and distinct from the misdirection which was the foundation of the Court of Appeal’s decision to overturn the convictions. We agree with the Court of Appeal that the appellant’s dishonest conduct that was proved at the trial justifies his not being awarded the costs of the trial.”[11]

12.  This decision is of particular relevance to the present case.  It was central to the prosecution’s case against the appellant that he had severely beaten and tortured Pang, the teenage courier, trying to recover drugs smuggled into Australia.  It was on the basis of that evidence that the prosecution sought to establish by inference that the appellant had been party to the conspiracy in Hong Kong and alternatively, sought to establish the existence of a conspiracy of a width sufficient to encompass the appellant’s brutal treatment of Pang.   Such evidence was directly relevant to the charge laid against the appellant.  His defence was that it was a frame-up and that he had merely gone to Australia to help Pang out.  As the prosecution points out, in convicting him, the jury must have rejected the defence case and must have been satisfied beyond reasonable doubt that he had committed the acts alleged.  The conviction was subsequently quashed on the basis that it was not the only reasonable inference that he had been party to the conspiracy from the outset and on the legal ground that a conspiracy to commit offences abroad was not indictable in Hong Kong, grounds that are not in any way inconsistent with the jury’s finding.

13.  In these circumstances, the Court is entitled to take into account the undoubted findings of savage beatings and torture administered by the appellant in the exercise of its discretion to refuse him his costs. 

14.  In the light of such conduct on his part, it would, in our view, be an affront to the administration of justice to award the appellant his costs of the trial.  A similar view was taken in the recent decision of this Court in HKSAR v Chan Yau Hei,[12] where Fok PJ, writing for the Court, held that it was a proper exercise of discretion to deprive the appellant of the costs of the trial before the Magistrate in view of his conduct which had involved posting an inflammatory message on line which the Court characterised as deserving of condemnation.[13]  His conviction was quashed on appeal because the offence of outraging public decency requires the act to be committed in a physical, tangible place, a basis that was in no way inconsistent with the findings made as to his reprehensible conduct. 

15.  The aforesaid considerations do not, however, justify depriving the appellant of his costs in the Court of Appeal where many of the arguments which succeeded before this Court were advanced but erroneously rejected.  However, we confine our award of such costs to the amount of the appellant’s legal aid contribution, if any.

16.  In the light of the prosecution’s concessions referred to in paragraph 4 above, we direct that the defendant have his taxed costs in the Court of Appeal limited as aforesaid; of the application to the Court of Appeal for certification; of the application to the Appeal Committee for leave to appeal; and in the appeal to this Court. We refuse costs in respect of the trial.