HKSAR v. LAU TSZ ON

[English Translation — 英譯本]
HCMA 644/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 644 OF 2015

(ON APPEAL FROM ESCC NO. 1191 OF 2015)

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JUDGMENT

1.  The appellant was charged with one count of “obstructing a police officer in the due execution of his duty with intent”, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212 of the Laws of Hong Kong. He pleaded not guilty and was found not guilty after by trial by Mr Peter Hui, Deputy Magistrate (“the magistrate”). The defence applied for costs. The prosecution opposed the application. In the end, the magistrate ordered that the appellant be awarded half of the costs only. He appealed against the order.

Facts of the case and the reasons for finding the appellant not guilty

2.  The magistrate set out the facts of the case and the reasons for finding the appellant not guilty in the statement of findings:

“2.  The defendant is found not guilty because the evidence given by the prosecution witness testifying against him was entirely inconsistent with the actual situation captured in the video recordings.

(a)  The first prosecution witness (PW1), Police Constable 11048, was the only witness the prosecution called. He was the policeman named in the particulars of offence who was alleged to have been obstructed by the defendant with intent. According to his evidence, on the night in question, he was one of the police officers who were carrying out the order to clear the site. They were to begin from Pier number 9, Central to drive away the protestors who had gathered there. At that time, he was in uniform and holding a shield in his left hand and a police baton in the right hand. They formed a horizontal line to push forward. On reaching Tamar Park, he saw a group of people gathering there. Not only did the group ignore the advice to leave, they even behaved in a provocative manner towards the police. PW1 saw that the defendant who was in front of him had twice moved forward with a running gesture with the intention of charging the police cordon line. He immediately gave the defendant a verbal warning to ask him to leave. On the first occasion, he saw the defendant retreating slowly and then immediately moving forward with a jogging gesture again. There was a police constable in front who shouted to stop the defendant before grabbing him. At this juncture, PW1 also went up to help to subdue the defendant together. As the defendant was still struggling, he therefore pressed him down to the ground before handcuffing his both hands and then handing him over to another police constable for dealing with.

(b)  However, what happened at the scene as depicted by the content of the DVD (Defence Exhibit D1) the defence produced to the court was entirely different. Nothing at all regarding the description PW1 gave of the defendant charging the police cordon could be seen. It could be seen from that clip that there was indeed a batch of people present at the scene, one of them, a young person who was facing the police, was performing a provocative act. A police officer in uniform (who, according to the evidence of the first prosecution witness, was Police Sergeant 52302) went forward to subdue that the young person who was not the defendant. It could be seen from the clip that at that time, the defendant was on that side of the hoarding with several people. It could be seen that later the defendant went up alone to a police officer in a white shirt (who according to the first prosecution witness was a Police Station Sergeant). Nothing could be seen to have happened. Suddenly, the defendant and someone who appeared to be a foreigner were seen turning back in a hurry to run. The said Police Station Sergeant chased from behind while at the same time discharged pepper spray. The defendant fell while running to flee. The Police Station Sergeant went up to press him down. Immediately afterwards, a bespectacled uniformed police officer went up to assist (PW1 admitted that this police officer was not he himself either). PW1 admitted that he himself could not be seen in that video clip.

(c)  Defence exhibit D1(B) is a set of still photos produced from the said video clip. The above description could be seen from photos 5 to 14.

(d)  Defence exhibit D2(1) was for the purpose of showing the clothing of the defendant on the night in question.”

The application for costs and the reasons for the magistrate’s decision

3.  The magistrate set out the relevant application and the reasons of his decision in the statement of findings:

“3.  The defence cited the guidelines laid down in Tong Cun Lin v HKSAR to claim costs against the prosecution. Counsel for the prosecution pointed out that the court had an unfettered discretion in dealing with the question of costs, and that (i) if the defence had disclosed that video clip to the prosecution before the case went on trial, it was highly likely that the prosecution would drop the charge against him, and (ii) the defendant failed to listen to the advice of the police to leave the place. It could be seen from the video clip that he was going up to a Police Station Sergeant and was then being driven away by that Police Station Sergeant with pepper spray. He brought suspicion on himself.

4.  I agree with the prosecution’s submission. The court is entitled to consider all the circumstances when dealing with the question of costs.

(a)  Nothing can be seen or heard from the video clip that the defendant had done or said anything to the Police Station Sergeant to cause the latter to pepper-spray him before chasing him to intercept and arrest him. P1, a set of ad[mitted] facts, is a prosecution exhibit that both parties produced to the court pursuant to section 65C of the Criminal Procedures Ordinance. Paragraph 3 states as follows: On 15^th October 2014 at about 0320 hours, DPC arrested the defendant for “unlawful assembly” and “obstructing a police officer in the due execution of his duty”. Under caution, the defendant remained silent. Further, as the defendant did not testify, there is no way to know the reason behind it. I am of the view that to a certain extent, the defendant had acted in such a way as to bring suspicion on himself. On the other hand, I take into consideration of the fact that as far as the actual situation goes, the police officer who should complain about the defendant was that Police Station Sergeant, but for reason unbe[known]st, it was Police Constable 11048 who did so. I am of the view that it may amount to obstructing the course of public justice, just that it was not pointed out in open court.

(b)  The case had already been brought up for mention three times before the commencement of trial. It can be seen from the court record that other than in the third mention, the defence had never disclosed that they would have a video clip that might help to vindicate the defendant. And even in the third mention, the defence only mentioned in passing that they might have a video clip in defence. Although the burden of proof is not on the defence, I consider what the defence did amount to “trial by ambush” as they had already learned from the materials the prosecution provided that the prosecution only relied on one witness to support the allegation against the defendant, and were also clear what the evidence of that witness was going to be while they had already got hold of a video clip showing the actual situation at the scene so that it could be foreseen that the acquittal of the defendant was a matter of course but chose to produce it only during the trial.

5.  In view of the above considerations, I find that the defendant should only be awarded half of the costs.”

Grounds of appeal

4.  Mr Randy Shek, counsel for the appellant, advanced three grounds of appeal:

(1) The magistrate erred in finding that there was sufficient evidence from the video clip to show that the appellant had brought suspicion on himself;

(2) The magistrate erred in finding that the appellant had brought suspicion on himself by remaining silent under caution and not testifying in court during the trial; and

(3) The magistrate erred in finding that by not disclosing the exculpatory evidence to the prosecution in advance, what the appellant did was “trial by ambush” and hence should not be awarded full costs.

Position of the prosecution

5.  Mr Franco Kuan, Acting Senior Assistant Deputy Public Prosecutor, acting for the respondent, agreed that the video clip could not clearly show that the appellant was acting in a suspicious manner. Even though the appellant remained silent after arrest and later did not testify in court, the respondent took the view that as far as the facts of the present case were concerned, the magistrate did not have sufficient basis to find that the appellant had brought suspicion on himself. Therefore, I do not have to deal with (1) and (2) of the grounds of appeal in this appeal.

6.  The respondent however submitted that the magistrate was entitled not to award costs to the appellant on the ground that he failed to disclose the crucial exculpatory material.

The issue that this court has to deal with

7.  I agree entirely with the submissions and arguments Mr Shek and Mr Kuan made on the question of whether or not the appellant had brought suspicion on himself. In so far as the facts of the present case are concerned, what the appellant did at the time in question and his exercise of the right to remain silent after arrest were not behaviour that brought suspicion on himself. Nor was his election not to testify in court during the trial. Indeed, the magistrate should not have exercised his discretion to award only half of the costs to the appellant on the ground that he had brought suspicion on himself.

8.  As the appeal is a re-hearing, and since the magistrate had erred when dealing with the application for costs, I have to consider the question of costs afresh, that is, should the appellant not be awarded the full costs as he had failed to disclose in advance the exculpatory video clip taken at the scene?

The relevant legal principles

9.  The legal principles regarding costs are very clear.

10.  Section 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap 492 states that where a magistrate dealing with any offence summarily acquits the defendant, the magistrate may order that costs be awarded to the defendant. The Ordinance states that the magistrate may make the aforesaid order. The magistrate has the discretion to decide whether or not to make the aforesaid order. The Ordinance however has not set out the principles the magistrate has to follow in exercising the discretion.

11.  Before the enactment of Cap 492, costs in criminal cases were determined according to the now repealed section 73A of the Criminal Procedure Ordinance, Cap 221. The court has discussed the relevant principles in R v Ng Yui Kin & Others[1]and R v Kwok Moon Yan & Another[2].

12.  The Court of Final Appeal laid down and described in details the relevant principles in Tong Cun Lin v HKSAR[3]. The Court of Final Appeal once again affirmed the relevant principles in Hui Yui Sang v HKSAR[4].

13.  The general basic principle is that in the absence of positive reasons to deprive him of his costs, an acquitted defendant should be awarded costs. Positive reasons include whether the defendant had brought suspicion on himself, whether his behaviour had misled the prosecution into believing that they had a case stronger than what it actually was, and whether or not there was an overwhelming case against him and the acquittal was the result of a technicality etc.

14.  Litton NPJ said as follows in Tong Cun Lin:

“......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 costsincurredindefendingthosecharges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising thediscretionmust 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, thediscretionis being exercised in the context of anacquittal – theavermentsconstituting the charges having been found by thejuryas not amounting to the crimesalleged – it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant's conduct during theinvestigationand 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 subsequentdefence, 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 thediscretionto 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 thejuryand reflected in the not-guiltyverdict. The person in the best position toweighthose matters is clearly the judge himself.”

15.  Further, generally speaking, unless the trial judge has taken into account matter that he should not have taken into account, an appellate court will not interfere lightly with the exercise of discretion by the judge (537C of Tong Cun Lin).

16.  In Ting James Henry, the Court of Final Appeal pointed out: “It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs.  Such conduct has been described as ‘most relevant’ to the discretionary exercise.  However, it is incorrect to suggest that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise.  The discretion is not bounded by any such inflexible rule.  By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself.  There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal.”

17.  I agree entirely with what A Cheung J, as he then was, held in Cheng Kam Kuen (paragraphs 27-33 of the judgment) to be the principle of the matters a court has to take into account when dealing with applications for costs following an acquittal where a defendant exercised his right to remain silent, refused or failed to disclose his defence or proffered an explanation at the investigation stage or failed to disclose his defence before the trial:

"27. Both on first principles and authorities, I totally agree that the right of silence is a fundamental part of the common law and the criminal law (I include here the absence of any affirmative duty of disclosure of the defence prior to trial – indeed an accused may choose to keep silent even at trial and simply put the prosecution to proof of its case). The right must be jealously guarded. It cannot be taken away or watered down, whether in form or in content, and whether directly or indirectly. This has been recently reaffirmed by the Court of Final Appeal in Lee Fuk Hing v. HKSAR [2005] 1 HKLRD 349.

28. However, this does not mean that under no circumstances can the refusal or failure to disclose one’s defence or proffer an explanation at the investigation stage, done in the exercise of the right of silence, be taken into account by the court in considering costs following an acquittal. The Court of Appeal in Kwok Moon-yan, supra, has said so in terms. The Australian cases have both explained why and demonstrated in what circumstances this may be done. Quite apart from the fact that Kwok Moon-yan as a decision of the Court of Appeal is binding on this Court, I agree with the conclusion that has been reached in these authorities.

29. Some may interpret this conclusion as putting a premium on an accused’s exercise of his constitutional right to silence, not in terms of guilt or innocence, but in terms of his ‘reasonable expectation’ (as opposed to ‘right’) to costs.

30. Ultimately this is a question of where to draw the line. The constitutional right of silence, enshrined in Article 11(2)(g) of the Hong Kong Bill of Rights contained in the Hong Kong Bill of Rights Ordinance (Cap. 383), which is itself entrenched by Article 39 of the Basic Law, is essentially concerned with an accused’s innocence or guilt. One could certainly argue that the possibility of an accused being deprived of costs by reason of his silence or non-disclosure may have the effect of putting undue pressure on him not to exercise his right to silence, thereby indirectly diluting that right and adversely affecting his position on innocence or guilt – the very object of protection of the right of silence in thefirst place. I can see the force of the argument.

31. Countering this are several considerations: the suggested connection is an indirect one; the direct point in question is costs, not guilt or innocence, and when legal aid is widely available, concern during the investigation/pre-trial stage about recovery of costs in future is in all likelihood more imaginary than real; what is in issue is payment of costs out of the public revenue to the accused, not payment of costs by him to anybody; there is no right or entitlement to costs, which is a discretionary benefit created by statute which does not see fit to exclude – at least not expressly – non-disclosure in the exercise of the right of silence from the discretionary considerations that may be taken into account; and that in an appropriate case the exercise of the right may be taken into account is not tantamount to an automatic refusal of costs – rather the fact that the non-disclosure was the result of the exercise of the accused’s constitutional right of silence must be firmly borne in mind and given due weight in the weighing exercise itself (Ling at pp. 387-388).

32. As I said, authorities apart, ultimately this is a question of value judgment and drawing the boundary of the right of silence. The authorities reviewed in this judgment have shown where that boundary, in the wisdom of the judges concerned, should be drawn. For my part, I agree with the conclusion reached.

33. How much weight, if any, should be attached to the refusal or failure to explain or non-disclosure in a particular case is an entirely different matter. Furthermore, as mentioned above, in the weighing process, the fact that the refusal or failure to explain was done in the exercise of the accused’s constitutional right of silence must be fully borne in mind and given due weight.”

18.  Put simply, the overall conclusion A Cheung J reached after considering and analyzing the Hong Kong and Australian authorities was when considering the question of costs, it did not mean the court could not take into account the refusal or failure to disclose one’s defence before the trial or proffer an explanation at the investigation stage, done in the exercise of the right of silence. The court should, while not depriving the defendant’s right of silence, make assessment on the facts of each case to decide if the defendant should be paid costs out of public revenue.

19.  What I have to consider and decide is, in so far as the facts of the present case and all the circumstances relevant to it are concerned, applying the aforesaid legal principles, whether I should exercise discretion not to award full costs to the appellant?

Factual background

20.  I shall set out the relevant factual background before considering the relevant question and the submissions both parties made on it.

21.  The case occurred on 15 October 2014.

22.  The defence was already aware of the existence of the video clip back in June 2015. But since they did not yet know the appearance and the build of the first prosecution witness, they did not know if he was one of the police officers that they saw in the video clip.

23.  On 23 June 2015, the defence wrote to the officer-in-charge of the case to ask the prosecution to provide documents and a photograph of the first prosecution witness. The defence did not say in the letter the reason why they asked for a photograph. The police did not provide it.

24.  On 7 July 2015 when the case was brought up for mention the third time, as the defence still did not know if the first prosecution witness was in the video clip, they only mentioned to the court that they might produce a video clip during the trial.

25.  On 31 July, the defence again wrote to the officer-in-charge, asking him/her to provide a photograph of the first prosecution witness. It made no mention of the reason why a photograph was asked for or the video clip. The police still did not provide a photograph.

26.  Later, on 19 August, another person who appeared in the video clip (the person in blue) stood trial in another case. PW1 in the present case also testified in that case. Mr Shek, counsel for the appellant in the present case was also the counsel representing the said person in blue. Based on the appearance, build and the evidence he gave in that case, the defence reached the conclusion that the police officer seen in the video clip produced in the present case to the court was not PW1.

27.  A few weeks before the commencement of the trial of the case, the defence applied to the court for a witness summons to call the person taking the said video to testify in court in order to produce it in court.

28.  During the trial, because PW1 admitted under cross-examination that the video clip showed what was happening at the scene where he was. The defence therefore did not have to call the person shooting the video to testify in the end.

29.  PW1 confirmed that neither of the two police constables shown in the video clip who had physical contact with the appellant were him. He said he was present at the scene. He was not captured in the video because there were movements. In other words, although the situation the video showed was different from what he described, he still insisted that he was present at the scene and that the facts of the case were as he had given.

30.  At the end of the prosecution case, the defence submitted that the appellant had no case to answer. Counsel-on-fiat acting for the prosecution opposed and submitted that what was captured in the video did not cover all angles; the prosecution had established a prima facie case.

31.  The magistrate ruled that there was a prima facie case against the defendant. He elected to remain silent. The magistrate in the end found him not guilty of the charge.

32.  The defence asked for costs. The prosecution submitted that the defendant brought suspicion on himself and failed to provide the relevant video clip to the prosecution before the trial. Had the defence produced the video clip beforehand, the prosecution might have dropped the charge against the appellant.

33.  In the end, the magistrate ordered that the appellant be awarded only half the costs.

Submissions of both parties

34.  The prosecution submitted that the appellant failed to disclose the crucial video clip before trial and hence misled them into believing that the prosecution case was stronger than it actually was when they did not have the benefit of viewing the video that had the effect of weakening the prosecution case. Only half of the costs should therefore be awarded.

35.  Mr Kuan stressed that if he had been the prosecutor and seen the video before the trial, he would definitely drop the charge against the appellant because the video showed without a shred of doubt that the allegation PW1 made against the appellant could not be established. If the defence had shown the video to the prosecution before trial, there would have been no trial and so the appellant should not be awarded full costs.

36.  The appellant’s argument is the testimony of PW1 was obviously different from what the video showed, and since PW1 saw it fit to fabricate evidence to frame the appellant, if the defence gave the video to the prosecution before trial, it was possible that PW1 would have the chance to view the video before giving his evidence and then change his evidence to fit or explain what the video showed. In view of the above concern, in order to avoid alerting the witness, the defence chose not to let the prosecution preview the video so that the witness could not “plug up the holes and correct the mistakes”.

37.  Counsel for the appellant argued that if the full costs were not awarded to the appellant because of this, it was tantamount to depriving him of his right, forcing him to disclose his defence before the trial.

My considerations

38.  Mr Kuan submitted that if he had already viewed the video before trial, he would definitely drop the charge. What Mr Kuan said in this regard smacks of being “wise after event”; and in fact, after viewing the video and listening to the no-case-to-answer submission the defence made, the counsel-on-fiat representing the prosecution still insisted that there was a prima facie case, and in opposing the application for costs, he only said he might have dropped the charge, not he would definitely have dropped the charge.

39.  PW1 in this case was a police constable. He accused the appellant of obstructing a police officer (that is, he himself) in the due execution of his duty with intent. Not only did the appellant not bring suspicion on himself in exercising his right of silence, he did not mislead the prosecution into believing that their case was stronger than it actually was either.  The facts of the case that the prosecution relied on came from PW1.

40.  This is not a case that concerns dealings between ordinary citizens. If a member of the public (complainant) accused a defendant of deception or other misconduct, and the defence was only known to the defendant (for example a documentary proof to show the existence of a contractual relationship between him and the complainant), when considering an application for costs, the court may decline to award costs to the defendant on the ground that he had failed to disclose his defence and hence brought suspicion on himself or misled the prosecution into believing that they had a case stronger than it actually was.

41.  This was not the case in the present case. The concern of the defence was justified. The defence could only formally confirm shortly before the trial on 19 August that the first prosecution witness was not one of the police constables who was seen in the video as having physical contact with the appellant. If the defence had given the prosecution the video at an early stage, it was inevitable that that the PW1 would be asked before the trial why the situation he described was not as shown in the video. When that happened, PW1 might give another written statement to explain.

42.  It must be borne in mind that the court relies on what a witness says under oath as evidence. The written statement of PW1 is not evidence. Although the defence could cross-examine PW1 on his previous inconsistent statement, this still ran the risk of the court accepting the explanation PW1 gave regarding the inconsistencies between the statement he made before and subsequently.

43.  Further, in the present case, at the end of the prosecution case (that is, after viewing the video in question), the counsel-on-fiat for the prosecution did not accept that the video clearly showed that the evidence PW1 had given was untenable. On the contrary, he sought to argue that there was a prima facie case against the defendant after the defence had submitted that there was no case for the defendant to answer.

44.  After hearing the submissions from both parties, the magistrate ruled that there was a prima facie case against the defendant.  In my view, that the magistrate found on the one hand that a prima facie case had been established and said on the other that it was certainly foreseeable that the appellant would definitely be cleared of the guilt with the video he had when he refused to award him full costs appears to be contradictory.

45.  If the effect of the video was so compelling that the appellant could foresee that he would definitely be cleared of the guilt, then should the magistrate have ruled that there was no case for the appellant to answer when the defence made the no-case-to-answer submission by applying the second principle in R v Galbraith (that is, the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, with the consequence that it is the duty of the judge to stop the case upon the defence making the submission of no case to answer)?

46.  In my view, in the circumstances of the present case, that the appellant did not disclose his defence before trial and did not give the video in question to the prosecution are not positive reasons to make this court exercise its discretion to deprive him of the costs he is entitled to.

Conclusion

47.  In view of the above reasons, I allow the appeal. The appellant is awarded the full costs of the trial. Costs to be taxed if not agreed.

[1] R v Ng Yui Kin & Others [1983] HKLR 356

[2] R v Kwok Moon Yan & Another[1989] 2 HKLR 396

[3] Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531

[4] Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308