SECRETARY FOR JUSTICE v. SHAH NASEEM

HCMA299/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 299 OF 2009

(ON APPEAL FROM KCCC 1056 OF 2008)

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J U D G M E N T

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1.  This is an appeal by way of case stated.  The Appellant seeks the quashing of an order for costs made in favour of the Respondent in the Magistrates’ Court.  The case reveals that the Respondent was charged with two offences of indecent assault.  The trial took place on 8 and 9 July of 2008 and the verdict was adjourned until 16 July.  On that date, 16 July, the magistrate raised the question of the accuracy of a certified English translation of a Chinese language transcript, the victim having given evidence via video link and the evidence-in-chief of the victim being the playing of a videotape in the usual way along with a transcript.

2.  One of the important issues before the court was the question of identification and the translation in question of the Chinese characters  was, "I recognised his appearance."  The magistrate was bilingual and he judged that that it would have been better translated by saying, "I recognised his face," or the like.  Instead of proposing that and seeing if that was agreeable to the parties there, a different course was followed, which was to summon the man who had done the original certification and translation.  So the matter went off to 29 July.  The interpreter was called.  The interpreter testified that the translation was accurate but conceded that it may have been better to say, "look," or "face" rather than "appearance".  There was a question of whether the identification had relied on the suspect wearing a hat, so it was a difference with significance.

3.  After hearing the interpreter give evidence the matter was adjourned further for verdict until 31 July.  On 31 July the Respondent   was acquitted on one of the charges and convicted on the other.  The order for costs that was eventually made was that the costs of 29 and 31 July, the two hearings that followed upon the questioning of the accuracy of the certified translation, were given to the Respondent.  The sum involved was $18,000.

4.  The magistrate chose to achieve that end by using section 17 of the Costs in Criminal Cases Ordinance, which allows an award of costs to be made where the court is satisfied that costs have been incurred as a result of any unnecessary or improper act or omission.  Basically, the magistrate said the difference in translation was important; that the prosecution should have realised that and should have corrected the matter of their own volition and that the consequent adjournment should be paid for by the prosecution. 

5.  The prosecution were aggrieved at that and, therefore, come to this court.  They come not under section 19 of the Costs in Criminal Cases Ordinance, which gives them a right to appeal to this court, but they came by way of case stated.  Of course, an appeal by way of case stated under section 105 of the Magistrates Ordinance has to be in respect of a point of law or something done in excess of jurisdiction.

6.  The way the case is drafted here is to pose three questions.  I am not going to set them out in full now, but basically, it was put like this:  did the magistrate err in finding that the costs had arisen due to an improper omission by the prosecution below and did he err in dismissing the application for review of the order that he had made, which engages  similar considerations. 

7.  It seems to me that those questions are questions of fact and not law.  The law is simple and straightforward.  It needs no clarification.  What is in question here is the judgment that the magistrate made that the conduct of the prosecution was sufficient to bear the description "improper".  Therefore, this appeal got off to a start where I raised with the prosecutor the fact that he had no point of law.  A discussion provoked this:  that if the questions in the case stated were redrafted to say no reasonable tribunal could have come to the conclusion that the act of the prosecution in failing to spot the interpretation issue was improper, then that would be a question of law.  Accordingly counsel for the Applicant seeks to amend the posed questions to put them in a form that I have just described.

8.  If he is unsuccessful in that, he asks me to entertain an appeal  under the Costs in Criminal Cases Ordinance, abridging the various procedural requirements so that this court can deal with the true merits of the case.  It is common ground that if there is an appeal under the Costs in Criminal Cases Ordinance, then pursuant to Rule 4(7) of the Costs in Criminal Cases Rules, this court can confirm, vary or revoke the order as it thinks fit.  In other words, it engages the application of discretion on the facts before me.

9.  So let me deal, first of all, with the application to amend.  I am not minded to grant it.  The amendment comes much too late and it is not one that I judge would, in fact, open the way for the Applicant to argue sensibly that, as a matter of law, the order made by the magistrate was flawed.  It may be that I would have been slow to make the order he did invoking section 17.  I would rather have invoked the general discretion that followed on the acquittal that took place, bearing in mind the provisions of section 6 of the Ordinance, which provides that the court still has power to exercise its discretion to award costs in favour of an acquitted Defendant even though he is convicted on another charge at the same time.  That is the route I would have preferred.

10.  I am against the Applicant on his application to amend the case and I certainly would not countenance it being sent back to the magistrate for him to amend it. 

11.  We then come to whether or not I should allow his application to treat this as an appeal under the Costs in Criminal Cases Ordinance.  I will allow that.  I will allow it in circumstances where I am confident that it will not harm the Respondent.  It opens up for me what should have been there from the beginning, which is the question of what is the right order to make in this case, and I have little difficulty in exercising my discretion afresh on the facts that exist here.  I exercise them in a way that upholds the order that the magistrate made.  For myself I would not have gone down the route of section 17 because it causes problems and there is no need to go on a problematic route when there is a perfectly good other route. 

12.  That other route is the one I have described, which is namely this:  that I have a general discretion because there was an acquittal.  When one looks at the costs that were involved here, it seems to be fair, because of the result of one acquittal, one conviction, that generally each side bears its own costs, save for those costs which were occasioned through no fault of the Respondent having to come back on two days to sort out the interpretation.  That was not his fault.  He never prompted it.  He played no part in incurring those costs and it seems to me to be fair that when one looks as to where those costs should fall, they should not fall upon the individual.  They should fall upon the public purse and that is why I uphold the order the magistrate made.  That disposes of the merits, I hope, of this appeal in front of me.

13.  The order I make is appeal dismissed.  Respondent to have costs of today.