HKSAR v. SHAMSUDEEN SYED AHMED

DCCC 947/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 947 OF 2013

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RULING

1.  After sentence was imposed on the defendant on 14 December last year the prosecution applied pursuant to section 12 of the Costs in Criminal Cases Ordinance[1]for the costs and expenses incurred as a consequence of attending the High Court of Malaya for the examination of the defence witness Jailani. A summary of the prosecution costs and expenses incurred was submitted to court with the total sum of $159,353.68 being claimed.

2.  Jailani was unwilling to come to Hong Kong to give evidence therefore the defence applied for and obtained a letter of request for the taking of Jailani’s evidence in the High Court of Malaya.

3.  Section 15 of the Ordinance sets out the general principles to be considered in awarding costs including that the costs awarded shall not be punitive; and shall be just and reasonable. 

4.  In HKSAR v Chan Kwok Wah[2]the Chief Judge of the High Court held that before deciding whether to order a defendant to pay costs of the prosecution a court had to consider whether there were any special circumstances which caused the prosecution to incur extra expenses and had also to consider the financial condition of the defendant.

5.  In HKSAR v Cheng Tak Wai [3]cited by Ms Ko, the Court of Appeal, after referring to HKSAR v Chan Kwok Wah, said that it was necessary to establish that there was some feature of the trial indicating that as a consequence of the way in which the defence was conducted unnecessary or additional expenditure was incurred by the prosecution.

6.  I am satisfied the costs and expenses incurred by the prosecution in attending the High Court of Malaya are additional costs and expenses incurred as a result of the conduct of the defence. 

7.  Mr Harris having informed the court that your financial resources had been “wiped out” by the trial and that you rely on family and friends, I adjourned the application for you to file an affirmation of your means. 

8.  This you have done stating that your assets are only MYR200 (HK$361) whereas you owe your family members around HK$2,500,000.  In addition the bail money of HK$100,000 was borrowed from your elder brother.  No evidence has been adduced to support what you say.  Although you are the holder of a Hong Kong permanent identity card you have not resided in Hong Kong since 2005 when you moved to live in Malaysia thereby making difficult any verification of your income and assets, if any.   

9.  On 17 November 2014 during a pre-trial reviewMr Harris informed the court that the usual order made was for the requesting party to pay the costs of travel and reasonable accommodation expenses but not the legal costs.  Nothing has been placed before me showing that this is the usual order.  Ms Ko has checked the data base of the prosecution from which she says this is the first case where the defence obtained letter of request. 

10.  On 14 December Mr Harris said you were willing to pay the travel and reasonable accommodation expenses.  Mr West has confirmed this today and submits the hearing in the High Court of Malaya lasting only half a day that two nights’ accommodation is reasonable not five as claimed.  Ms Ko responds that the hearing being on a Monday necessitated travelling to Kuala Lumpur on the Thursday to give sufficient time to hold conference with the Malaysian lawyers.

11.  Mr West submits that the costs of Ms Ko are not actual costs incurred by the prosecution and that due to your impecuniosity it would not be just and reasonable that you be ordered to pay what is a significant amount of costs.  

12.  Section 14(2) of the Ordinance provides that a court may order payment of any costs awarded to the prosecutor or any part thereof be made out of any moneys taken from a defendant on his apprehension, arrest, being taken into custody or his surrender to custody or paid into court by a defendant.  Mr West informs the court that the bail money can be used in payment of any order for costs made by the court.  

13.  Mr West further asks that if an order for costs is to be made then a sum be fixed and not an order that costs be taxed so as to bring the matter to a final conclusion thereby avoiding further costs. 

14.  Whilst a court is slow to accept an unsupported statement that you have no funds having carefully considered everything said on your behalf by Mr West I am prepared to accept you have limited means to pay any costs order.  In the circumstances I am satisfied a sum of $50,000 towards the costs of the prosecution is just and reasonable.  I order that you pay the costs of the prosecution in the sum of HK$50,000, which sum is taken from your bail money pursuant to section 14(2) of the Ordinance.