HKSAR v. LI WAI KWAN

HCMA 1140/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1140 OF 2002

(ON APPEAL FROM ESCC 2239/2002)

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J U D G M E N T

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1. The appellant in this case was acquitted of an indecent assault but denied his costs. He appeals the order so denying him.

2. The case for the respondents below had been that he had touched a twelve year old school girl indecently on a bus. The appellant did not give evidence. The case put to the girl was that she was mistaken in her identification of the appellant.

3. The magistrate found a lurking doubt based on the failure of the prosecution to deal satisfactorily with the apparent failure of the police to record what the victim had said about when she next saw the appellant after the incident. The magistrate believed that the victim was probably not wrong in her identification. The fact remained that she could not be sure that the appellant was the man in question.

4. Section 3(1)(c) of the Costs in Criminal Cases Ordinance gave the magistrate a discretion to award costs to the appellant.

5. It goes without saying that the discretion has to be exercised judicially and that the magistrate was well aware of this. The magistrate well knew that the normal practice would be to make an order for the appellant's costs from public funds unless there were positive reasons for making a different order.

6. The usual examples of such positive reasons are where a man brings suspicion on himself or he misleads the prosecution into thinking their case is stronger than it is or where acquittal is achieved on a technicality that has no merit.

7. The Ordinance gives an unfettered discretion. The cases, albeit sometimes on different legislation, emphasise this characteristic. It is not to be thought that the two usual examples of positive reasons for not making the normal order are the only grounds which would justify the exercise of the discretion against an acquitted man. To hold otherwise would be to fetter the discretion.

8. Is there good reason to make it just for me to interfere with the magistrate's order? The argument runs that there cannot be sufficient ground to justify the order as to costs given the verdict of acquittal in a case where the issue was identity and only identity. I see the force of this.

9. Is it possible for facts in a case such as this to be judged in such a way that acquittal and an order for no costs can walk hand in hand or does the latter go behind the verdict? I confess that I do not find the question an easy one to answer. The respondents agree with the appellant and concede that this was a case where he should have had his costs.

10. It is not without reluctance that I am persuaded to reverse the order and award the appellant his costs, both here and below, to be taxed if not agreed. That reluctance arose because an experienced magistrate who well knew the rules decided that it would offend her sense of justice to make the order in favour of the appellant and she was uniquely placed to evaluate the evidence. However, put bluntly, one cannot go behind the verdict and deny costs on the basis that the appellant was probably guilty or that the evidence proving identity was almost sufficient to discharge the burden of proof.