HKSAR v. HO WING HONG

HCMA 629/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 629 OF 2001

(ON APPEAL FROM TWCC 2998/2000)

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J U D G M E N T

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1. The Appellant was charged in the Magistracy on one charge of using a false instrument which is contrary to section 73 of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The case was originally brought up in December but subsequently adjourned on two occasions, and Mr Chan, Counsel for the Appellant, very properly, informed this court that the reason for the second adjournment was due to the absence of the main prosecution witness.

2. Then, on the third hearing day, the prosecution witness again failed to turn up despite having been properly served with a summons, the police was unable to locate him. So, very properly, the prosecution then offered no evidence against the Appellant and the Magistrate duly acquitted the Appellant. This resulted in an application for costs from the defence and the learned Magistrate, having considered the fact that the reason for the acquittal was because of the absence of the main prosecution witness, then refused costs.

3. The Magistrate in her statement of findings said that she was not aware of the strength of the prosecution case or whether the Appellant had misled the police authority. So obviously this was not something that was brought to her attention and she had to proceed on the basis that he did not bring suspicion upon himself nor misled the authority.

4. She then went on to say in the same paragraph at page 14 of the Appeal Bundle at sub-paragraph 5, that "the prosecution on seeing that the main witness did not come then decided to offer no evidence and they did not apply for an adjournment and also that the Appellant's lawyer had conceded that the prosecution had properly commenced proceedings against the Appellant." So, therefore, under the circumstances she concluded that the Appellant was not entitled to his costs.

5. With the greatest respect, the costs for an acquitted Defendant normally follows the event unless there are positive reasons for not making such an order and it has been very clearly stated by the Court of Appeal that there are two positive reasons:

1. where the Appellant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; or

2. where there is ample evidence to support a conviction but it is quashed on a technicality which has no merit.

6. As was made apparent by the learned Magistrate, the first positive reason obviously did not apply in this case. As to the second reason, whether there is ample evidence to support a conviction but it is quashed on the technicality which has no merit, it would appear it is a reason which applies more in the case where a Defendant was convicted but his conviction was quashed on a technicality without merit.

7. The reasons that the learned Magistrate advanced, it would appear, for not awarding costs were therefore not considerations which she should have made in the application for costs, and I see no positive reason to deny the Appellant of his costs as costs should follow the event, and so costs are awarded to the Appellant for the second adjournment in the court below and on the third hearing date that is the last two appearances in the Magistrate's Court and also costs for today and costs are to be taxed if not agreed. The appeal is therefore allowed.