HKSAR v. CHIM PUI CHUNG AND OTHERS

HCC133/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 133 OF 1997

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RULING ON COSTS

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1. At the end of a trial which lasted for some 137 working days, the 1st Defendant Chim Pui Chung was found not guilty by the jury on five of the total of six counts he faced in the indictment. He was found guilty and convicted of one count of conspiracy to forge documents. The case against Ms Debbie Chui Lai Yuk, who was charged with one count of conspiracy to forge documents, was not proceeded with after the court ruled that a statement under caution purportedly made by Ms Chui was inadmissible. The 3rd Defendant Nelson Chan Kai Fung was acquitted on all of the five counts he faced.

2. There are four applications for costs before this Court : there is the application by the prosecution against the 1st Defendant Chim Pui Chung for contribution to the prosecution's cost in these proceedings; there are also applications by each of the three defendants for their costs against the prosecution.

3. The Costs in Criminal Cases Ordinance Cap.492 came into operation in July 1996. As there is no provision for it to have retrospective effect, the Ordinance therefore does not apply to the present applications. The events particularised in the charges of the indictment took place between 1st April 1991 to 25th August 1994, which was some two years before the Ordinance became operative.

4. The relevant sections governing the present applications are ss.72 and 73A of the Criminal Procedures Ordinance, Cap.221. These sections had since been repealed by Cap.492. Under s.72(1), the courts have power to order a convicted person to pay all or part of the costs or expenses incurred by the prosecution in relation to offences for which that person is convicted. Under s.73A(1), the courts also have power to award costs to a defendant if he is acquitted of the charge which he faces.

5. In cases where the applicant is acquitted of some but not all of the counts in the indictment, the position whether the defendant can apply for costs is not entirely clear under the old legislation. This court is guided by the views expressed by the Court of Appeal on this issue in R. v. Kwok Moon Yan & Anr. [1989] 2 HKLR 396 in which Silke, V.-P. made the following comments :

" One final point, Mr Cross has asked us to state that S.83XX only starts to bite if an appellant has his conviction quashed on all counts in an indictment or a charge sheet. We think generally that must be right though we would not wish unduly to fetter that which is said to be an unfettered discretion. There may well be circumstances in which an award of costs either in part or in whole would be proper where some of the convictions are upset and others not."

6. In the application by Mr Chim, I shall proceed on the basis that this court has jurisdiction to award costs to a defendant who was only acquitted on some but not all the charges.

7. It is common ground that the court has an unfettered discretion in matters relating to costs and such discretion is to be exercised in the light of the circumstances peculiar to each case. It is normal practice that an order would be made in favour of an acquitted defendant for his costs unless there are positive reasons for not making such an order. Two of such reasons recognised by the courts are that the defendant, by his own conduct, has brought suspicion upon himself, or that there was ample evidence to support a conviction but the defendant is acquitted on a mere technicality (Ng Yui Kin & Ors v. R. [1983] HKLR 356).

8. As the Presiding Judge of the trial, I had the opportunity of reading the voluminous documents exhibited in the trial in their proper context. I am also mindful of the parts allegedly played by the defendants, including that of Miss Debbie Chui, in the period covered by the indictment. Mr Chim was at all material times the brain behind his business operations, and Chan and Chui were his employees who had carried out Chim's instructions with blind faith and with absolute disregard of the possible legal consequences. I have taken note of the contents of the numerous documents many of which bear the signatures of the defendants, it would be unrealistic to identify each document and the information contained therein. I am surprised that the information contained in those documents are inaccurate, false or grossly misleading. I am convinced that this is a case where the conduct and activities of the defendants had brought upon themselves overwhelming suspicion and I have no difficulty in finding that this is a straightforward case for the court to refuse the cost applications by each of the three defendants.

9. I would now turn to the prosecution's application against Mr Chim for contribution to the prosecution's costs. The courts have taken the view that it is only in exceptional circumstances when such an order should be made against a defendant. One of the recognised exceptions is where a defendant, knowing of his guilt, has nevertheless elected to be tried by a jury and thereby wasting the court's time and public money. It is in my view the basic right of any defendant charged with a criminal offence to require the prosecution to prove the case against him and to meet the required standard of proof. Regardless of how strong the prosecution case may appear on paper, the defendant is entitled to test the strength and the reliability of the evidence adduced by prosecution. With that in mind, the prospects of a defendant having to contribute a part or even all of the prosecution's costs can be looked upon as an inhibition of the defendant's right. In the present case, the conduct of Mr Chim amounts to no more than an insistence of his right to require the prosecution to prove the offences for which he is charged. I see no reason why a defendant such as Mr Chim should be ordered to make contributions to the prosecution's costs.

10. The application by the prosecution is also dismissed.