HKSAR v. PHILIP RUSSELL BOUTTLE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 74 OF 1999

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JUDGMENT ON COSTS

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1. By my judgment handed down on 3 May 1999, I allowed the appeal. The main grounds upon which I allowed the appeal were that the Magistrate had placed undue weight on PW1's evidence in-chief without giving due weight to his contradictory or inconsistent evidence in cross-examination, and that the Magistrate's understanding or interpretation of the term "business dealings" used in PW1's evidence was incorrect.

2. The Appellant asks for the costs of this appeal but not the costs of the trial before the Magistrate. Mr Lok on behalf of the Appellant relies on s.8 of the costs in Criminal Cases Ordinance, Cap.492, the relevant part of which provides as follows :

          "Where a judge

the judge may order that costs be awarded to the defendant."

The usual rule is that costs should follow the event.

3. However, Mr Zervos has pointed out to me that s.25 of the Ordinance excludes the application of the Ordinance to the present case. Section 25 of the Ordinance provides that:

"This Ordinance shall not apply to criminal proceedings in respect of offences committed before the coming into operation of this Ordinance."

As the offences shown in the charges were in relation to a sum of $300,000 being a loan, or being alleged as a loan, solicited and received by the Appellant on 13 January 1997 and the date when the Ordinance came into operation was on 17 January 1997, the Ordinance does not have application to the present proceedings. That view of Mr Zervos I accept. Then the matter must rest with the application of s.83XX of the Criminal Procedure Ordinance, which confers on the Court the discretion to order costs.

4. In R v Kwok Moon-yan and another [1989] 2 HKLR 396, at p.401B-E, the Court of Appeal held as follows :

5. Mr Zervos relies heavily on the two criteria in Kwok Moon-yan's case, namely,

6. In this case, the charge was based on a cheque for $300,000 given by PW1 to the Appellant, and that took place on 13 January 1997. Connecting with that was also a cheque drawn by the Appellant and paid to PW1 for a sum of $150,000 in August 1997. I am of the view that the existence of these two cheques, without explanation from the Appellant, would no doubt bring suspicion upon himself especially in view of the suspected triad background of PW1 and the fact that the Appellant, as a senior officer of the Police Force, had access to the triad files.

7. Mr Lok asks me to disregard the reference to the triad background of PW1 as shown in the skeleton argument of Mr Zervos. However, I am of the view that this material is relevant for consideration on the matter of costs, and it should be considered by this Court in addition to the evidence that was presented before the Magistrate.

8. The second ground relied on by Mr Zervos is that the Appellant did not give any inkling as to his explanation regarding the money transaction borne out by the two cheques before the commencement of the trial before the Magistrate.

9. Mr Lok has argued, and very strenuously, that the Appellant as any defendant in a court in Hong Kong was fully entitled to the right to silence and not to disclose his defence. There are in fact two opposing principles there, one is the right to remain silent and not to disclose the defence's case, and the other is the matter mentioned in Kwok Moon-yan's case that the fact that an Appellant had a good and valid explanation which he neglected to bring forward at an early and appropriate moment should be considered as a factor in reaching a conclusion regarding costs. While I am bound by the decision in Kwok Moon-yan, I am inclined to think that Mr Lok must be right: However, I do not need to resolve this point because it is likely that in the present case, the defence case that had not been disclosed to the prosecution before the trial would not have been believed as it would not be supported by any documentation. Anyhow, I am satisfied that the Appellant had brought suspicion upon himself.

10. Mr Zervos argues that since the Appellant had brought suspicion upon himself and so the prosecution was brought against him, his conduct affected the whole chain of proceedings right up to the Court of Final Appeal. The argument is that had he not brought suspicion upon himself no prosecution would have been brought and therefore the proceedings before me would not have taken place, and in fact if the argument is correct, then the Appellant's conduct would taint all future proceedings right up to the Court of Final Appeal.

11. I must say that the argument is not logical. According to Kwok Moon-yan at pp.401H-402C, the Court of Appeal adopted the judgment of Watkins, LJ, in the R v Agritraders Ltd. [1983] 1 QB 464 that the Court must exercise separately a discretion in respect of the costs in the Court of Appeal, the Court of Trial and the Magistrate's Court having regard to the circumstances obtaining in each court.

12. Having examined all the facts relating to costs carefully, I consider that Mr Lok is correct in not applying for costs before the Magistrate, for his client, the Appellant, had brought suspicion upon himself which led to his prosecution before the Magistrate. However, the points argued before me upon which I allowed the appeal were totally different and those related to how the Magistrate had dealt with the evidence presented before himself.

13. In the circumstances, I am of the view that costs of the appeal should be to the Appellant, and I so order. Costs of the appeal to the Appellant to be taxed if not agreed. I am obliged to counsel for their arguments.