HKSAR v. LEE SIN SAU

HCMA127/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 127 OF 2009

(ON APPEAL FROM ESCC 2944 OF 2003)

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JUDGEMENT ON COSTS

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Background

1.  The appellant LEE Sau Yin was convicted of an offence of “Publishing an obscene article”, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance (Cap. 390).  She appealed against her conviction and I allowed the appeal (see Judgment dated 14 October 2009).

2.  Upon her success in having her conviction quashed, the appellant applied for the costs of the appeal and the trial.  The respondent raised no objection to the costs of the appeal but submitted that the appellant had brought suspicion upon herself and should not have cost of the trial.

3.  Although both Mr Philip Wong for the appellant and Ms Grace Chan for the respondent were able to make certain verbal submissions at the time, it was clear that they could not fully develop their arguments due to the constraint of time.  I therefore made an order granting costs of the appeal to the appellant, to be taxed if not agreed; and I allowed parties to submit written arguments before I make my decision in relation to the costs of the trial.

4.  By a letter dated 10 November, Ms Chan indicated that the respondent no longer intends to oppose the costs of the trial below.

Applicable principles on costs

5.  Section 8 of the Costs in Criminal Cases Ordinance, Cap 492, provides that where a judge allows an appeal to which section 105 or 113 of the Magistrates Ordinance (Cap. 227) applies, the judge may order that costs be awarded to the defendant.

6.  There is no restriction on the judge’s discretion to award only costs in relation to the successful appeal, the judge may also order costs of the trial to be awarded to the defendant.

7.  The Ordinance does not lay down the principles which govern the exercise of the judge’s discretion.  Before the enactment of Cap. 492, costs in criminal cases were governed by the now repealed section 73A of the Criminal Procedure Ordinance, Cap. 221.  The applicable principles in the exercise of the discretion whether to award costs were discussed in a number of cases : R v Ng Yui Kin & Others [1983] HKLR 356, R v Kwok Moon Yan & Another [1989] HKLR 396.  The Court of Final Appeal has, in the case of Tong Cun Lin v HKSAR [1999] 2 HKCFAR 531, affirmed and elaborated on these principles.  These principles are again re-affirmed by the Court of Final Appeal in Hui Yui Sang v HKSAR [2006] 2 HKLRD 738.

8.  The general rule is that the court should normally award costs to an acquitted defendant unless there are some positive reasons to deprive him of such costs.  Positive reasons include whether he has brought suspicion upon himself; whether his conduct has misled the prosecution into thinking that the case against him is stronger than it is; whether there is ample evidence to support a conviction but it is quashed on a technicality which has no merit.

9.  In Tong Cun Lin, Litton PJ, when giving judgment of the Court of Final Appeal, elaborated on the “general conduct” of an acquitted defendant :

“What then are the governing principles?  When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges.  In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced.  This cannot be confined to any particular period of time.  Since, however, the discretion is being exercised in the context of an acquittal—the averments constituting the charges having been found by the jury as not amounting to the crimes alleged—it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial : How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc.  Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted : These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not—guilty verdict.  The person in the best position to weigh those matters is clearly the judge himself.”

10.  Whilst the appellant was not an acquitted by the magistrate, but had her conviction quashed on appeal, the same principles apply.

Discussion

11.  It is not in dispute that the only evidence against the appellant was the admissions contained in the record of interview P8.  The fact that she held a certain position in Eastweek Magazine at the material time was not, in itself, enough to convict.

12.  In Cheung Bik Kwong v Attorney General & Another [1999] 2 HKC 870, a District Court judge refused to grant costs to an acquitted defendant.  The only evidence against the defendant was his own cautioned statement, which was ruled involuntary and inadmissible.  The District Court judge relied on the contents of the incriminating but inadmissible cautioned statement to hold that the defendant had brought suspicion upon himself.  There being no provision for any right of appeal from the order refusing costs, the defendant sought a judicial review of the said order.  Counsel for the defendant submitted there had been an error in law in that the District Court judge had used inadmissible evidence to deny the defendant costs.  Mayo J (as he then was) agreed with the reasons submitted—when counsel for the Justice Department did not oppose the application eventually.

13.  In HKSAR v Wong Pak Nin [2000] 1 HKLRD 74, the defendant was acquitted of an offence of managing a vice establishment.  The only evidence against him came from his admissions, which were ruled inadmissible.  The magistrate refused costs on the basis that that the defendant had brought suspicion upon himself.  Beeson J, when dealing with the decision in Cheung Pik Kwong, had this to say :

“I do not agree with that holding in its entirety.  I do not think it possible to say that on a costs application a magistrate can never take into account, for the purpose of deciding the application, the contents or provenance of a statement that has been ruled inadmissible.  There may well be circumstances where although a statement is ruled out, the evidence relating to its provenance or contents may reveal that the accused brought suspicion on himself.  A magistrate, in certain circumstances, must be able to examine a confession statement from one view for the purposes of determining admissibility, but from a different standpoint for the purposes of deciding an application for costs.”

14.  In that particular case, however, Beeson J in fact awarded costs to the defendant as the magistrate appeared to have relied only on the admissions contained in the statement to decide that the defendant had brought suspicion upon himself, despite having doubts about the way the statement was obtained.

15.  In HKSAR v Chau Chiu Wong, HCMA91/2000, the successful appellant applied for, inter alia, costs of the appeal and the trial.  Nguyen J allowed costs of the appeal but refused costs of the trial.  The evidence showed that the appellant was seen by the police pushing a trolley with cartons later found to contain infringing CDs and VCDs.  The appellant appeared to be nervous and made a verbal admission that the cartons contained infringing VDs when questioned by the police.  At trial the magistrate did not rely on the appellant’s verbal admission in convicting him.  Nguyen J referred to Cheung Bik Kwong and the passage in Wong Pak Nin as quoted above.  Nguyen J agreed with the approach of Beeson J and he found that the appellant’s had brought suspicion upon himself after considering the evidence of the case, including the appellant’s verbal admission.

16.  In Li Lai Yu Jane v HKSAR, HCAL40/2003, the applicant applied to judicial review the ruling of a deputy District Court Judge’s refusal to award her costs subsequent to her acquittal.  Chu J, after referring to the above-mentioned cases, said (at para. 23 of the judgment) :

“23.   In this regard, I am in agreement with the views expressed by Beeson and Nguyen JJ that it must be permissible, in some circumstances, for the trial magistrate or judge to have regard to the answers given in a cautioned statement, despite that the statement is ruled inadmissible… while it would not be proper to take into account the contents of a cautioned statement that has been excluded by reason for force, inducement, threat or oppression, it should be permissible to refer to a cautioned that is excluded on procedural or technical ground or grounds that do not call in doubt the genesis and reliability of the contents in the statement”.

17.  I find myself in total agreement with the views expressed by Chu J.

18.  The circumstances of how the appellant came to provide the answers recorded in P8 were unusual.  The magistrate did not appear to have considered the fact that D1 was also a suspect in the same case—a fact known to PW2 who interviewed the appellant at the time.  P8 was wrongly admitted into evidence by the magistrate.  While it could be argued that had the magistrate considered, and demonstrated that he had considered, this aspect of the case, he might still have found P8 admissible, the fact that PW2’s evidence in this respect was less than candid does throw doubt as to whether the prosecution would have been able to prove, beyond a reasonable doubt, that the appellant voluntarily provided the answers in P8.  I find it improper and unfair to rely on the answers contained in P8 to consider the appellant’s application for costs of the trial.

19.  Applying the general principles to the present case, there are no positive reasons to deprive the appellant of her costs.  I order that costs of the trial be granted to the appellant, to be taxed if not agreed.