HKSAR v. CHAN KWOK WAH

[English Translation – 英譯本]

HCMA 668/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 668 OF 1998

(ON APPEAL FROM NKCC NO. 826 OF 1998)

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BETWEEN

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JUDGMENT

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1. The Appellant was convicted after trial before a magistrate on one count of assisting in the management of a vice establishment and was sentenced to imprisonment for 8 weeks. In a previous similar case, the Appellant had been sentenced to imprisonment for 4 weeks but suspended for 18 months. As the present offence was committed when the Appellant was serving the suspended term, the magistrate ordered that the previous sentence be activated and to run consecutively to the present sentence, making a total term of 12 weeks. The magistrate also ordered the Appellant to pay costs of the prosecution in the sum of $12,483.

2. I have previously dismissed the Appellant’s appeal against conviction. At the appeal hearing, the Appellant applied for an extension of time to appeal against sentence. I granted an extension and admitted him to bail so that the hearing of the appeal against sentence could proceed after the magistrate submitted his Reasons for Sentence.

3. On the day of the offence, two plain-clothed police officers entered a hair salon in Shantung Street. The Appellant led them to a room and told them about sexual services on offer, and also brought two females to them. The two girls were about to provide sexual services to the two officers when the officers revealed their identity. The Appellant was then arrested.

4. A few months prior to the present offence, the Appellant was charged with assisting in the management of the same vice establishment at the same hair salon. He was convicted on that charge and the magistrate, who was also the magistrate that tried the present case, imposed a suspended sentence. In the present case, the magistrate considered 8 weeks to be an appropriate starting point because the Appellant had re-committed the same type of offence at the same location within a matter of months. In the absence of mitigating factors that justified a lenient approach, the magistrate sentenced the Appellant to 8 weeks’ imprisonment. The magistrate also pointed out that the Appellant had been given an opportunity in the form of a suspended sentence but had failed to take that opportunity to rehabilitate, and therefore he now had to receive an immediate custodial sentence. In the circumstances, the magistrate was correct in imposing 8 weeks’ imprisonment for the present offence and activating the sentence for the previous offence. However, the magistrate ordered the two sentences to run consecutively for the stated reason that “the 4 weeks’ suspended imprisonment [for the previous offence] has to be served in full. The two sentences involve two separate offences, and the total term of 12 weeks cannot be regarded as too long.” According to the Reasons for Sentence, in adopting the starting point of 8 weeks for the present offence, the magistrate had in fact taken into account the fact that the Appellant committed the same offence while serving the suspended sentence. In other words, the Appellant’s culpability would have been fully reflected by an immediate custodial sentence with the term doubled from 4 weeks to 8 weeks. As the two sentences involved two distinct offences committed at different points of time, the order for consecutive sentences is in my view appropriate. However, in arriving at the final sentence, the magistrate should have considered, in accordance with the totality principle, whether the total term of imprisonment of 12 weeks was excessive. In the Reasons for Sentence, the magistrate merely stated that “the total term of 12 weeks cannot be regarded as too long” and did not set out reasons therefor. It is doubtful whether the magistrate had properly and thoroughly taken into account the totality principle. Even if the magistrate took the view that the two custodial sentences were to be served immediately and consecutively, he should still have considered whether part of the sentences could be served concurrently so that the total sentence would not be excessive. For the two offences in question, in light of the sentences imposed in decided cases involving similar offences, the total term of imprisonment of 12 weeks as imposed by the magistrate is in my view manifestly excessive for having failed to properly consider the totality principle.

5. When he applied for an extension of time to appeal against sentence, the Appellant was a few days away from release from prison. The records show that the Appellant had applied for bail pending appeal, but the magistrate took the view that “the Appellant, who has been sentenced to imprisonment for breach of the suspended sentence, is very likely to jump bail, and therefore his application for bail is refused”. Judging from the transcript, this reason for refusing to grant bail did not seem to be supported by sufficient evidence. Fortunately, the magistrate had also reminded the Appellant that he had the right to re-apply to the High Court for bail pending appeal, although the Appellant did not take this course. In these circumstances, I granted the Appellant bail pending appeal for a bail amount of $1. As the sentence imposed by the magistrate is manifestly excessive, I allow the Appellant’s appeal against sentence and order that the sentence be reduced so that he can be released from prison immediately.

6. Following the sentence, the magistrate further ordered the Appellant to pay costs of the prosecution in the sum of $12,483. The circumstances leading to this order were as follows. According to the appeal transcript, on 16 June, after the magistrate imposed the sentence on the Appellant, the following exchange took place in the court:

Court:            … is there any application by the prosecution on costs?

Miss Kuk:     No, your Worship.

Court:            Prosecutor, was it not necessary to incur any costs at trial of this case?

Miss Kuk:     Your Worship, it was necessary. The prosecution has called four witnesses and would now like to claim costs.

Court:            Has [the amount] been calculated or estimated?

Miss Kuk:     No. The four witnesses are all civil servants.

Court:            D2, do you have anything to say regarding costs of the trial?

D2:                Regarding costs? In fact, my family condition is not that good. Your Worship, even if I just managed to make ends meet, I would have hired a lawyer to represent me, right?

Court:            The court is of the view that D2 in this case has to pay costs of the prosecution, but as the prosecution has not at this stage calculated the exact amount, the court will adjourn this case for one week to allow the prosecution to calculate the relevant costs and submit the relevant bill at the next hearing.

D2:                Can I say something more?

Court:            Prosecutor, will one week be enough?

Miss Kuk:     It will be enough, your Worship.

7. After one week, on 23 June the prosecution submitted a bill of costs. After calculation, the magistrate concluded that the total amount payable by the Appellant was $12,483. The Appellant said he did not have the means to pay that amount of costs and objected to having that amount deducted from the $20,000 bail money. He said he borrowed the bail money from a friend of his called Mr Nam and that he had to return the money to Mr Nam upon conclusion of the case.  The magistrate then heard the Appellant’s explanation and called Mr Nam to testify. Having heard their evidence, the magistrate refused to accept their explanation. The magistrate went on to order the Appellant to pay the said sum of costs within 6 weeks, failing which he would be imprisoned for another 5 weeks as substitute. The Reasons for Sentence indicate that, a few days after the magistrate made the above order, he found that section 14(2) of the Costs in Criminal Cases Ordinance allowed the court to order that the costs awarded to the prosecution be made out of the Appellant’s bail money, and that section 68 of the Magistrates Ordinance did not empower the court to impose an imprisonment on the Appellant by reason of his failure to pay costs. The magistrate therefore decided to review the above two erroneous orders pursuant to the Magistrates Ordinance, with the review hearing fixed for 30 June.

8. At the hearing on 30 June, the magistrate explained the above to the Appellant and varied the previous orders by ordering that the costs payable by the Appellant could be made out of the bail money and by setting aside the order of 23 June that the Appellant was to be imprisoned for 5 weeks as substitute if he failed to pay the costs.

9. It is clear from the transcript quoted above that the prosecution did not seek a costs order against the Appellant at the outset. It was only when the magistrate mentioned it that the prosecution applied for a costs order. And in the process, when the magistrate was considering an adjournment to enable the prosecution to calculate the relevant costs, the Appellant asked the magistrate whether he could make submissions, but the magistrate simply ignored him. The transcript also shows that when the Appellant and Mr Nam gave evidence the explanation, the prosecutor did not ask them any question and only the magistrate did so.

10. In respect of the reasons for concluding that the Appellant must be ordered to pay costs of the prosecution, the magistrate had this to say in the Reasons for Sentence:

The defendant committed an offence which led to prosecution by the police and the Department of Justice. Upon judgment being made against him, he should pay reasonable costs to the prosecution.

The present case involves another defendant (D1). When he pleaded guilty, the prosecution did not ask for costs. Therefore, D2 should not in my view be asked after trial to pay pre-trial costs. However, as the trial only concerned D2, he should, as far as he is able to do so, pay for the public expenses of the prosecution in respect of the costs of trial.”

11. The magistrate did not specify the statutory provision pursuant to which the costs order against the Appellant was made. However, in light of the reference in the judgment to section 14 of the Costs in Criminal Cases Ordinance, which allowed costs to be made out of bail money, I believe that the magistrate made the costs order pursuant to section 11 of that Ordinance. The relevant provisions of section 11 read as follows:

“11.   Prosecution costs in summary proceedings

(1)     Where ―

(a)     a defendant is convicted by a magistrate or a magistrate makes an order on complaint in respect of a defendant under the Magistrates Ordinance (Cap. 227); or

(b)     a magistrate, under section 104 of that Ordinance, on the application of the defendant reviews and subsequently confirms his decision to convict a defendant or to make an order on complaint in respect of a defendant,

the magistrate may order that costs be awarded to the prosecutor.”

12. The Ordinance does not specify the circumstances in which a magistrate may order a defendant to pay costs of the prosecution. In my view, however, the reason given by the magistrate for making the costs order was insufficient. Were that reason valid, then each and every defendant who was convicted after trial would have to pay costs of the prosecution because it must be that defendant who had “led to prosecution by the police and the Department of Justice”. I do not think this is the spirit and rationale behind the Costs in Criminal Cases Ordinance.

13. In R v Chan Chor [1968] HKLR 540, a magistrate ordered the defendant to pay costs of the prosecution in the sum of $100. The magistrate considered it appropriate to make a costs order against the defendant on the ground that the prosecution had spent time and costs on and gone to the trouble of establishing the defendant’s guilt and that the defence was wholly unmeritorious. On appeal, Huggins JA held that, unless there had been special circumstances leading to additional costs on the part of the prosecution, it would be unusual to order a convicted defendant to pay costs.

14. That case was decided before the Costs in Criminal Cases Ordinance was passed into law. It can nevertheless be seen that it has not been the court’s intention to require each and every convicted defendant to pay costs of the prosecution. A defendant is presumed innocent until he is proved guilty, and the prosecution bears the burden of proving the defendant’s guilt beyond reasonable doubt. This is a fundamental constitutional right enjoyed by a defendant. Accordingly, it is an indirect deprivation of a defendant’s fundamental constitutional right to penalize him in costs merely because his plea of not guilty has rendered it necessary for the prosecution to adduce evidence against him or because his defence has not been accepted by the court. Furthermore, if, as the magistrate in the present case said, each and every convicted defendant had to pay costs of the prosecution, does it mean that in each and every case an adjournment would be required pending a bill of costs from the prosecution and the court would have to calculate and even rule upon the amount of costs payable by the defendant? This cannot be the objective of the Ordinance. In my view, in applying the Costs in Criminal Cases Ordinance, the magistrate must consider whether there have been special circumstances as a result of which the prosecution incurred additional costs. These circumstances may include the defendant’s conduct throughout the trial, for example, by deliberately making difficulties about the prosecution witnesses, intentionally lengthening the trial, or putting the prosecution to proof of insignificant matters or undeniable facts. The magistrate also has to consider the defendant’s financial condition before deciding whether to order the defendant to pay costs of the prosecution.

15. In the present case, possibly by reason of a lack of legal representation, the Appellant made a lot of requests and put forward a number of defences throughout the trial. However, he did have the right to do so. The Appellant, who acted in person, talked incessantly at trial, and this might have prompted the prosecutor or the court to think that he was deliberately making trouble, but he should not be further penalized on account of his conduct, particularly conduct in the exercise of his fundamental constitutional rights. In his verdict, the magistrate neither stated any other reason for making a costs order against the Appellant nor specified any special circumstances that led to a significant amount of costs being incurred by the prosecution. Accordingly, the magistrate’s costs order is in my judgment unsubstantiated.

16. At the hearing, Counsel for the prosecution also informed me that the Department of Justice did not support the magistrate’s order requiring the Appellant to pay prosecution costs of $12,483. Counsel submitted that, even if the magistrate did consider it necessary to order the Appellant to pay costs, the amount would usually be no more than $1,000.

17. Having considered the circumstances of the present case and the reason given by the magistrate, I am satisfied that the magistrate’s costs order is improper. The order is set aside accordingly.