HKSAR v. LIU SUN KONG AND ANOTHER

HCMA851/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.851 OF 2002

(ON APPEAL FROM FLCC 1209 OF 2002)

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J U D G M E N T

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1. The appellants were acquitted of wounding and common assault on 15 August 2002. Consequent upon their acquittal, they applied to the magistrate for an order for costs. On 15 August 2002, that application was refused. The appellants now appeal the order refusing costs.

2. The appellants were tried between 5 and 8 August 2002 in respect of an incident which occurred at an open space in Sheung Shui Wai on 27 April 2002. The wounding charge faced by both of the appellants was contrary to section 19 of the Offences against the Persons Ordinance and the 2nd appellant faced one more charge of common assault.

3. I do not propose to set out the facts of the case because whilst the magistrate referred to those facts in coming to a decision not to allow the application for costs, this appeal is not mounted on the actions of the appellants but upon the basis of the exercise of the magistrate's discretion. It is common ground that a defendant who is acquitted is entitled to his costs unless the acquittal is a technical one or unless the applicant brought suspicion upon himself : HKSAR v. Tong Cun-lin [2000] 1 HKLR 113. I accept that as the law. I also accept that where the appeal is brought in respect of a discretion exercised by a magistrate the appeal court will be slow to interfere with the exercise of that discretion.

4. During the appeal I heard argument as to the standard upon which the magistrate should be certain of the facts upon which she found the appellants had brought suspicion upon themselves. Having heard counsel on the matter, I am satisfied that there is no specific standard. There is a test the test is whether the magistrate having seen and heard all that is before her, was of the view that the appellants brought suspicion upon themselves, as said by Litton PJ in Tong Cun-lin, the discretion is a very wide one indeed.

5. In this case, the appellants were acquitted because the magistrate did not believe the witnesses for the prosecution, she said this :

"In my brief reasons for verdict, I did say in court that I would not say PW1, PW2 and PW3 were incredible but obviously they had not told the court all the truth in this case. ..."

and further :

"The witnesses chose to hide something. In the circumstances, I could not give their evidence any significant weight. I gave the benefit of the doubt to both defendants and acquitted them."

6. When the application for costs was made, the magistrate relied upon evidence which had been given by PW1, PW2 and PW3 and upon her disbelief of what was said by the appellants in statements made by them to the police. These statements were admitted into evidence. It seems in the main that the magistrate did not believe what was said by the appellants in their statements to the police.

7. For the purposes of the appeal, the issue that I must consider is whether the magistrate having found that she could not give any significant weight to the evidence of the witnesses and not having believed substantial parts of the statements made by the accused prior to trial and adduced by the prosecution, was justified in exercising her discretion to refuse the application for costs. This is clearly one of those cases where the whole of the story was not before the court and I can understand the difficulty faced by the magistrate. I am, however, concerned that costs were refused and the discretion exercised by the magistrate against the applicants upon the basis of witnesses upon whom she could give no significant credit. In her reasons for refusing the application, she places the value of the evidence as somewhere between having no significant weight and being incredible.

8. In my view, the application should have been granted and the discretion exercised in favour of the applicants. The appeal is allowed and the order refusing costs is set aside. The appellants will each have their costs here and below, to be taxed if not agreed.