HKSAR v. LI SIU TONG AND OTHERS

HCMA 547/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 547 OF 2000

(ON APPEAL FROM SPCC 2205/2000)

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J U D G M E N T

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1. The three Appellants were jointly charged with an offence of common assault. One of the Appellants was, in addition, charged with an offence of claiming to be a member of a triad society. The trial took place in May of this year before Mr Bruce McNair. Although the magistrate found that each Appellant had a case to answer, at the conclusion of the hearing all three were found not guilty of the charges they faced. The Appellants had been legally represented at trial and sought payment of their costs. The learned magistrate exercised his discretion by refusing that application. This appeal is in respect of that refusal.

The background facts

2. The Appellants are involved in the management of a guest house in a well known building in Hong Kong called Chung King Mansions. The building contains a number of guest houses as well as eating establishments. It was accepted at trial that touting for customers of the guest houses is active to the extent sometimes of being obtrusive. There is, however, some form of convention that touting should cease if a customer has pre-booked an establishment or has already been persuaded to chose one.

3. On 10 May of this year, several customers entered Chung King Mansion. They had pre-booked a guest house but nevertheless received the active attention of one or more of the Appellants. This led to some form of confrontation with the manager of the guest house into which the guests had pre-booked.

4. A member of the security staff employed by Chung King Mansions came to try and settle matters. The Magistrate was satisfied that the security officer was entitled to make enquiries and that his actions in so doing were lawful even if they were exercised with less than perfect tact.

5. However, a heated argument now took place between the security officer and the three Appellants. During the course of this argument, the security officer alleged that he was assaulted by the Appellants and that one of them claimed, as a form of threat, that he was a triad member.

6. The argument with the security officer took place in or about a lift lobby. There was a video surveillance camera in the lobby and it seems that part of the incident was filmed. This video film, to a degree, undermined certain of the allegations of punching and the like made by the prosecution witnesses.

The Magistrate's reasons

7. In his reasons for refusing the Appellants their costs, the Magistrate said the following:

"I had acquitted the defendants on the evidence based on my assessment of credibility, inconsistencies and the chaotic circumstances which prevailed during this incident. I had found and ruled that there was a case to answer. The Defendants did not testify as was their right."

8. He then went on to say:

"Although I found the criminal charges against the defendants not proven, I found the evidence clearly established that the Defendants were interfering with the visitors as the latter made their way to the lift on the way to PW2's guest-house. PW1 [the security officer] attempted to deal with the situation which, from his point of view as security supervisor, involved one tenant complaining about the actions of other tenants. PW1's inquiry of the Defendants was entirely proper. The Defendants acted in an unruly, impolite and thoroughly hostile and reprehensible manner. There was a struggle between the Defendants and PW1 and they were verbally abusive to him. Although I was left with the strong opinion that PW1 could have handled the incident with more tact, I found the responsibility for this incident was the direct result of the defendants' conduct. The visitors left and did not return. It was clear on the evidence that they were not impressed with this incident. The Defendants breached the agreed code for touting for customers. It was the Defendants' own actions and behavior, which attracted the attention of PW1, the police and the prosecution."

The complaint

9. The complaint made by the Appellants is that, in effect, the magistrate was denying them their costs for what he considered to be their general 'anti-social behaviour' and not because their actions brought suspicion upon themselves in respect of the alleged criminal offences. Mr Sham, who appeared for the Appellants, argued that, yes, they may have breached the unwritten rules of the touting convention and their conduct may have been anti-social. But that in itself, he said, was no good ground for denying them their costs. To do so there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the Appellants behaved badly but that their conduct brought suspicion upon themselves in respect of their alleged criminal conduct.

10. As a general principle, I agree with these submissions. There must be a close and direct nexus between the broader, general conduct of the Appellants and their alleged criminal conduct.

11. The Costs in Criminal Cases Ordinance, Chapter 492, provides, in terms of section 7, that, where a magistrate has acquitted a defendant, he may order that costs be awarded to that Defendant. In short, a discretion is vested in the magistrate who, of course, by that stage has heard the evidence and has been able to assess the nature and effect of the Defendant's conduct.

12. The Ordinance does not lay down the principles which govern the exercise of the Magistrate's discretion. But guidance is obtained in that regard from Tong Cun Lin v. HKSAR [2000] 1 HKLR 113 in which Litton PJ, in giving the judgment of the Court of Final Appeal, said the following:

"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."

13. In respect of the present case, the magistrate, therefore, had an obligation only to consider that conduct which was 'relevant' to the charges faced by the Appellants. That, I believe, answers Mr Sham's point; namely, that the magistrate could not deny the Appellants their costs simply because their general disorderly conduct did not meet with his approval. What amounts to 'relevant' conduct will differ according to the circumstances of each and every case. While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent the magistrate from considering the Appellants' actions directly surrounding the alleged criminal conduct.

14. The magistrate was entitled to describe the background to the incident; namely, the breach of the apparent touting convention. He did so to set the matter in context. But I believe that the core of his reasoning is to be found in the following words (which I repeat):

"The Defendants acted in an unruly, impolite and thoroughly hostile and reprehensible manner. There was a struggle between the Defendants and [the security officer] and they were verbally abusive to him."

15. The magistrate does not say who started the struggle. Perhaps he was unable on the evidence to determine that point. Nevertheless in respect of the confrontation (and, therefore, the struggle too) he described the Appellants as acting in an unruly and hostile manner. He further said that they were abusive.

16. The picture painted is of a menacing group, one which involved itself in a physical struggle. On that description of how the Appellants acted at or about the time of their alleged assault upon the security officer, I can find no ground for saying that the magistrate erred in principle. Clearly, in the view of the magistrate, the menacing physical conduct of the Appellants at that critical time was such that it leant weight to the allegation that they committed the criminal acts alleged even if, upon closer examination, the magistrate was unable to find such acts proved beyond a reasonable doubt. In short, the magistrate found that the Appellants, by their conduct at the relevant time, brought suspicion upon themselves.

17. The magistrate had the benefit of hearing the evidence and I am unable to say that he exercised his discretion in a way which would enable this Court to interfere. The appeal is therefore dismissed.