Secretary for Justice v. HEUNG CHIN TONG and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

1998, No. 154
(HCMA)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court)::

1. The magistrate K.E. Ball, Esq. was requested by the Appellant to state a case in these proceedings.

2. The Respondents were charged as follows:

(a) HEUNG Chin-tong and TAM Mei-lee, you are charged that on the 1st day of November, 1996 on the Ground Floor outside Block 24, City One, Shatin, New Territories, in Hong Kong, you did, with a view to gain for yourselves, make an unwarranted demand of $5,000 Hong Kong currency from male AU YEUNG Hung, with manaces;

(b) HEUNG Chin-tong, you are charged that on the 1st day of November, 1996 on the Ground Floor outside Block 24, City One, Shatin, New Territories, in Hong Kong, you did steal cash $1,760 Hong Kong currency, the property of male AU YEUNG Hung;

(c) TAM Mei-lee, you are charged that on the 1st day of November, 1996 on the Ground Floor outside Block 24, City One, Shatin, New Territories, in Hong Kong, you assaulted male AU YEUNG Hung; and

(d) TAM Mei-lee, you are charged that on the 1st day of November, 1996 at City One Video Game Shop at City One Shopping Centre, Ground Floor, Shatin, New Territories, in Hong Kong, you assaulted female AU YEUNG Kun-may."

3. The magistrate heard these charges on 8th May 1997. At the conclusion of the prosecution case a submission of no case to answer was made to the magistrate. He accepted the validity of the submission and dismissed the charges.

4. An application was then made by the Respondents for their costs to be defrayed by the prosecution pursuant to the Costs in Criminal Cases Ordinance, Cap. 492.

5. This was opposed by the Appellant as it is provided by s.25 of the Ordinance that it shall not apply to criminal proceedings in respect of offences committed before the coming into effect of the Ordinance which was on 17th January 1997.

6. The magistrate ordered that the Respondents' costs of $30,000 should be paid by the Appellant. He expressed the view that:

"Having heard both parties, I was of the opinion that:-

(a) There was no offence committed within the meaning of section 25 of the Ordinance;

(b) The Ordinance applies in the present case; and

(c) There was no positive reasons not to award costs to the Respondents in the exercise of my discretion."

7. The issue of law for determination by this court was formulated in this way:

"WHETHER I was correct in holding that the Costs in Criminal Cases Ordinance applied to a case where the offence was alleged to have been committed before 17th January, 1997 and the trial of which was heard after that day."

8. This question must be answered in the negative. It is very clear from a consideration of the Ordinance as a whole that it is artificial to attempt to separate the concept of an offence from criminal proceedings which are referred to in s.25. It is not a constructive exercise to contemplate criminal proceedings divorced from the commission of an offence.

9. What is envisaged by the Ordinance is criminal proceedings and this includes the offence or alleged offence which is the subject matter of the criminal proceedings.

10. There can be no doubt that the Ordinance does not have a retrospective effect to include criminal proceedings which were instituted prior to the date when the Ordinance came into effect.

11. Notwithstanding the submission made by Mr. Tang for the Respondents I do not see any inconsistency here with the Bill of Rights Ordinance. I will hear the parties on the form of the order I will make to take cognizance of this analysis of the question posed.

Later:

12. I ordered that no costs should be payable to the Respondents.