HKSAR v. CHAN HOK PAN AND OTHERS

HCMA 82‑97 & 141‑143/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS 82‑97 AND 141‑143/2013

(ON APPEAL FROM ESS NOS 20886‑20888, 34877‑34878/2007,
18087‑18092, 38410‑38413, 38415, 41255, 42076‑42080, 45791‑45793/2008,
  18478, 30872/2009, 4222‑4223, 4622, 4809‑4810, 44206/2010
  AND 50724‑50726/2011)

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(HEARD TOGETHER)

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J U D G M E N T

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Application

1. This is an appeal by the appellant (“the prosecution”) against the costs orders made by Acting Principal Magistrate Madam Bina Chainrai (as she then was) (“the PM”) in favour of the 19 respondents herein when the prosecution withdrew the summonses against them on 14 January 2013 (R82 to R97) and on 18 February 2013 (R141 to R143), pursuant to section 19 of the Costs in Criminal Cases Ordinance, Cap 492.

Background

2. Information was laid against the 19 respondents by way of 36 summonses, all alleging that they “delivered messages for transmission” by means of an unlicensed telecommunications system (including attempting to commit and aiding and abetting the commission of the same) on various dates between April 2007 and June 2011, contrary to section 23 of the Telecommunications Ordinance, Cap 106 (“TO”).  The unlicensed means of telecommunications system referred to the broadcasting at FM 102.8 MHz by Citizen’s Radio.

3. 16 of the 19 respondents were alleged to be guest speakers at forums or radio programmes broadcast by Citizen’s Radio.  R82 Chan Hok Pan, R83 Wong Chun Kwok and R97 Chan Miu Tak were respectively alleged to be a controller of, a host of a radio programme at, and the principal tenant of, the studio of Citizen’s Radio situated at Hong Man Street, Chai Wan.

4. The trials of these summonses were put on hold pending the outcome of a challenge to the constitutionality of section 23 of TO in relation to the same offence of “delivering messages by unlicensed means of telecommunications system” by five appellants, who were also respondents in the present case (i.e. R84 Wong Yuk Man, R92 Lau Wai Hing Emily, R90 Lee Wing Tat, R91 Lee Cheuk Yan and R96 Chan Wai Yip Albert).

5. The Court of Final Appeal (“CFA”), by a majority, held in HKSAR v Wong Yuk Man and others, (unreported) FACC Nos 10 and 11 of 2011, 13 November 2012, that by speaking into the microphone in a forum which broadcast the discussion simultaneously to listeners of Citizen’s Radio, the five appellants did not deliver messages for transmission and their convictions were quashed.  The CFA found it unnecessary to deal with the constitutionality issue.

6. As a result of the CFA judgment, clearly the prosecution could not proceed against the respondents on the original basis that they delivered messages for transmission by unlicensed means of telecommunications system (or attempting or aiding or abetting such delivery).  The prosecution would have to either amend the particulars of the summonses to correctly reflect the alleged criminality, (by, for instance, alleging the actual “transmitting” of messages by unlicensed means of telecommunications system, contrary to the same section 23 of TO), or to withdraw the summonses.

7. For two months after the CFA judgment was delivered, the prosecution did not inform the respondents what it intended to do.  Then on 14 January 2013, when the matter came before the PM, the prosecution applied to withdraw 33 of the 36 summonses against 16 of the 19 respondents as three of the respondents (i.e. R141 Tik Chi Yuen, R142 Sham Tzi Kit and R143 Lee Wai Yee) were absent.

8. Mr Raymond Cheng, SPP of the Department of Justice, informed the PM, upon his application to withdraw the summonses:

“ We decided to withdraw the summonses, not because of any problem with the summonses or evidence, to the contrary, the latest judgment of the Court of Final Appeal delivered in November last year confirmed, instead of the basis upon which the [respondents] are now charged with, the [respondents] can be guilty of the offence alleged on an alternative basis.

However, we have taken into consideration the following matters thus far, the lapse of time from the date of the offence till now; secondly, the role of the—the role played by these [respondents]; the likely penalty…

…

  So we consider that it is not in the public interest to continue to prosecute them.”

9. On the respondents’ application for costs, Mr Cheng resisted the application, saying that the respondents had brought suspicion on themselves by “participating in the broadcasting” which the prosecution said was illegal.  The PM then asked Mr Cheng was there evidence of such participation, pointing out that all she had before her was that the summonses had been laid and then withdrawn.  Mr Cheng then suggested calling evidence to support his argument that the respondents had brought suspicion on themselves, but his suggestion was not acted upon and no evidence was in fact adduced.  The PM granted costs to the 16 respondents, to be taxed if not agreed.

10. I ascertained from Mr David Leung, Deputy Director of Public Prosecutions (Ag), who appeared with Mr Cheng before me, that the PM was not provided with any summary of facts in relation to each summons, nor was she provided with any authorities—particularly on the issue of costs when the charge/summons was withdrawn.

11. On 18 February 2013, the remaining three respondents appeared before the PM.  The prosecution applied to withdraw the summonses against them and the respondents asked for costs.  When Mr Cheng indicated opposition, the PM said:

“ I think that will be difficult. I granted costs for the other [respondents] already.”

12. Mr Cheng proceeded to make submission why costs should not be granted to the three respondents.  Unlike the last occasion, Mr Cheng presented a set of summary of facts against each of the respondents, emphasising that each respondent had spoken in a public forum organised by Citizen’s Radio and their speeches were recorded, meaning that there was independent evidence of their participation.  However, none of the respondents was prepared to accept what was stated in the summary of facts.

13. Mr Cheng also drew the PM’s attention to the case of HKSAR v Lam Chiu Fong & Others [2009] 2 HKLRD 484 and the cases cited therein.

14. The PM appeared to have differentiated the case of the three respondents before her from Lam Chiu Fong on this basis that evidence was heard before the magistrate in Lam Chiu Fong who then drew certain conclusion. She also distinguished the case before her from the case of Mooney v Cardiff Magistrates’ Court(2000) 164 JP 220 (cited in Lam Chiu Fong) on the basis that there was independent medical evidence supporting the wife’s injury even though the wife did not wish to pursue the charge against her husband and the charge was withdrawn.  

15. The PM said, at the end of the proceedings:

“ Well, in my view, even with that, I can’t see myself not giving them their costs. I have given the costs to the other [respondents] against whom you have withdrawn the summonses, and I don’t think that would be fair to these [respondents] to deal with them differently. So I think I would make the same costs order, all right?”

16. The PM then made the same costs order, granting costs to the three respondents, to be taxed if not agreed.

Grounds of appeal

17. There are four grounds of appeal:

(a)  the PM had erred in failing to follow the guidelines laid down in Lam Chiu Fong, namely, in deciding whether costs should be awarded to the respondents on the prosecution withdrawing the summonses, she should consider the evidence available against the respondents and the reasons for the prosecution to withdraw the charges;

(b)  the PM had erred in failing to follow the procedure laid down in Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308, namely, in giving her reasons for allowing costs, she should state precisely the grounds upon which she exercised her discretion and the facts relied on by her in coming to her conclusion;

(c)  the PM had erred in the exercise of her discretion in awarding costs to the respondents; and

(d)  additionally, in the case of R141 to R143, the PM had erred in taking into consideration irrelevant matters in deciding whether costs should be awarded to R141 to R143, namely, that costs had previously been awarded to R82 to R97.

18. As indicated by Mr Leung, the appellant’s primary argument is that the PM erred in exercising her discretion to award costs to the respondents, in that she had wrongly taken the view that there was no evidence upon which she could find the respondents’ conduct had brought suspicion on themselves when the summonses were withdrawn, contrary to the decision of the Court of Appeal in Lam Chiu Fong.  Further, the appellant submitted that the PM did not set out the relevant facts and reasons how and why she exercised her discretion in awarding costs, contrary to the procedure set out in Hui Yui Sang.

19. The second argument is that on the second occasion (18 February 2013), despite the prosecution drawing the PM’s attention to, and making extensive references to, the case of Lam Chiu Fong, she erred in taking into consideration the fact that she had awarded costs to the other respondents on the earlier occasion (14 January 2013).

20. Mr Leung submitted that the summonses were withdrawn, not because there was a lack of cogent evidence, but because of the lapse of time from the date of the offences (some took place as early as April 2007 and the latest one in June 2011); the respective roles of the respondents; and the likely penalty. 

21. Mr Leung submitted that there was a wealth of evidence suggesting that the respondents had participated in the unlicensed broadcast with full knowledge of the lack of licence to broadcast and had therefore brought suspicion on themselves.  He submitted that the respondents should be deprived of their costs upon the prosecution withdrawing the summonses.

Discussion

22. Section 3 of the Costs in Criminal Cases Ordinance, Cap 492, provides, inter alia, that where an information or complaint laid before a magistrate is not proceeded with (3(1)(a)); or where a magistrate dismisses the information or acquits the defendant (3(1)(c)), the magistrate may order that costs be awarded to the defendant. 

23. The Ordinance does not lay down the principles which govern the exercise of the magistrate’s discretion.  Before the enactment of Cap 492, costs in criminal cases were governed by the now repealed section 73A of the Criminal Procedure Ordinance, Cap 221.  The applicable principles in the exercise of the discretion whether to award costs were discussed in a number of cases (where the defendant was acquitted of the charge): see R v Ng Yui Kin & Others [1983] HKLR 356, and R v Kwok Moon Yan & Another [1989] 2 HKLR 396.  In short, costs should be awarded to an acquitted defendant unless there was positive reason not to do so.  One of such positive reasons was “where the defendant’s own conduct has brought suspicion on himself”.

24. The CFA has, in the case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 which was after the enactment of Cap 492, affirmed and elaborated on these principles.  These principles are again re‑affirmed by the CFA in Hui Yui Sang.

25. In Lam Chiu Fong, the Court of Appeal held that where charges are withdrawn, the starting consideration is the same as where there has been an acquittal.  There should be an award of costs in favour of the person charged unless there is positive reason for making a different order.  The defendant having brought suspicion on himself or having led the prosecution to believe that the case against him was stronger than in fact it was amounts to such a positive reason.

26. As to the procedure for the application for costs, in a case after acquittal, it involves four steps (see Hui Yui Sang).  Very briefly:

(1)  Defence counsel indicates a costs application is being made.

(2)  Prosecution should indicate whether the application is opposed, and if so, on what grounds. Prosecution should identify the facts relied on in support of such grounds.

(3)  Both parties should be ready to make submissions then and there and if an adjournment is required, the application should be dealt with as early as possible.

(4)  Having heard submissions the judge in giving reasons for allowing or refusing costs, should state precisely the grounds upon which he exercises his discretion and the facts relied on by him to come to his conclusion.

27. In a case where the prosecution withdraws the charge, the proper procedure is discussed in Lam Chiu Fong.  Mr Leung has succinctly set it out and I gratefully adopt his formulation which is as follows:

“(1) In an appropriate case, a tribunal may come to a decision on costs on the basis of what was told by the prosecutor.

(2) A tribunal will be looking for some indication from the prosecutor that there was independent evidence to support the complaint (para 27, citing from [Mooney v Cardiff Magistrates’ Court ] and para 44);

(3) For the purpose of costs, it is not that evidence is not relevant or required. It will depend on the individual case. However, it is not desirable that court lists be clogged unnecessarily with evidential inquiries springing from costs applications (para 28). The matter must be approached with common sense (para 43)

(4)  The discretion on costs is not exercised so as to undermine the presumption of innocence (para 32).”

28. I would add that unlike an acquittal (which might not have been in the contemplation of the prosecution), in a case where the charge/summons is withdrawn, the prosecution should have anticipated the likelihood of a costs application and should be in a position to advance arguments if such an application is to be resisted. The need to adjourn the hearing should be rare.

29. I will first consider whether the PM had erred in exercising her discretion as alleged by the appellant.  If I am with the appellant on that, I will then consider whether the respondents had indeed brought suspicion on themselves whereby they should be deprived of their costs.

30. The CFA judgment was delivered in November 2012.  There was no explanation before me why it had taken two months before the prosecution finally decided to withdraw the summonses on the very morning of the resumed hearing.

31. I understand there was oral communication between certain legal representatives of some respondents and the prosecution prior to 14 January 2013 but the prosecution had not given any indication as to how it would proceed with the summonses.  I was informed by Mr Leung that Mr Cheng had considered the possibility of the question of costs being raised at the hearing prior to 14 January 2013.

32. What surprises me is that the prosecution clearly had not properly prepared for such an eventuality, resulting in a failure to equip the PM with the summary of facts setting out the prosecution case against each respondent (which would have given an indication to the PM of the proposed evidence to be adduced and the strength or weakness of such evidence). No authorities relevant to the issue of costs when a charge/summons is withdrawn were brought to the PM’s attention either.

33. On the other hand, Dr Stephen Tang (counsel for R87 and R93) had prepared a five‑page written submission asking for costs even though he was not informed until the day of hearing how the prosecution was going to proceed.  His written submission was adopted by all the respondents present.

34. It should be noted that in his written submission, Dr Tang admitted on behalf of R87 and R93 that the two respondents had participated as guest speakers in a public forum held on 20 April 2007 organized by Citizen’s Radio in exercise of their constitutional rights of freedom of speech and expression as guaranteed by Article 27 of the Basic Law, and Article 16 of the Hong Kong Bill of Rights.  No such admission was made by the other respondents.

35. The PM was sitting in Court 1 of the Eastern Magistracy - an extremely busy court - when the prosecution withdrew the 33 summonses.  Unlike me, the PM did not have the benefit of the summary of facts to assist her.  She appeared not to be aware of the judgment of Lam Chiu Fong at the time.  Without the summary of facts to indicate the prosecution case against, and the alleged roles played by, the respondents - particularly when many of the respondents were unrepresented, I can appreciate the PM’s query and concern: where was the evidence of the respondents participating in broadcasting which the prosecution said was illegal?  Mr Cheng’s suggestion of calling evidence, in such circumstances, was understandably not found to be acceptable to the PM.  As a result of the “under preparation” of the prosecution, the PM was not made aware of the extent of the allegation against the respondents and what independent evidence existed to properly consider the prosecution’s suggestion to adduce evidence.  Mr Cheng did not make clear to the PM what evidence he intended to call and did not ask for an adjournment either.

36. In the circumstances, I find it difficult to agree with Mr Leung that the PM erred in exercising her discretion in awarding costs to those respondents who made no admission as to their alleged participation when the prosecution had not even provided her with the summary of facts.

37. In the case of R87 and R93, although they admitted to have participated as guest speakers in a public forum organized by Citizen’s Radio in exercise of their constitutional rights, there was nothing before the PM to show that there was any actual transmission, or that the two respondents were aware of the broadcasting being “illegal”, as alleged by the prosecution. I have no basis to find that the PM erred in exercising her discretion to award costs to R87 and R93.

38. For these reasons, the appeals against the PM’s costs order in relation to all those respondents on 14 January 2013 are dismissed.

39. What took place on 18 February 2013 was quite different.  On this occasion Mr Cheng was prepared and the PM was provided with the summary of facts and the case of Lam Chiu Fong.  Whilst I fully understand the PM’s concern that the other respondents were awarded costs earlier so there should not be a disparity among the respondents who were effectively facing the same charge, the fact was that she was presented with a Court of Appeal authority on the proper procedure to be adopted for a costs application when the summonses were withdrawn, and the summary of facts which the prosecution relied on to support its opposition to costs, the PM should have properly considered the matter before her and should have given reasons why and how she exercised her discretion in awarding costs to the respondents.

40. As the PM erred in failing to follow the procedure set out in Lam Chiu Fong, and had also erred in taking into account the fact that the other respondents were granted costs earlier, it falls upon me to consider whether the three respondents should be deprived of their costs for the reason that they had brought suspicion on themselves.

41. Before considering this issue, it is important to consider why the summonses were withdrawn.  I respectfully agreed with what Stock VP had said (at para 44 of Lam Chiu Fong): “…. it will be important for the court to know the reasons for withdrawing the charge…” The prosecution had charged the respondents with the wrong particulars (as found by the CFA in Wong Yuk Man).  The prosecution had no choice but to either amend the particulars or to withdraw the same.  They chose to withdraw—for perfectly valid reasons, I must add (i.e. the lapse of time; the roles undertaken by them; and the likely penalty).

42. Had the prosecution chosen to amend (assuming that leave to amend is granted), the costs already incurred by the three respondents for attending the previous court hearings would have been wasted.  I cannot see any court, when granting leave to amend, would have failed to order the prosecution to bear the costs incurred or occasioned by the amendment.  I do not see any valid reason to hold a different view when the summonses are withdrawn instead of being amended.

43. Coming to the question of whether the three respondents had brought suspicion on themselves, the respondents agreed, for the purpose of this hearing, for me to assume that there was evidence that they had taken part as guest speakers in a public forum organized by Citizen’s Radio; and that during the broadcasting, words to the effect that Citizen’s Radio was not licensed were mentioned, with a rider that should there be a need for me to make an actual finding whether the assumed facts did take place, the prosecution will adduce the relevant evidence (such as audio/video recordings and/or transcripts of what had been said).

44. One of the main grounds in resisting the appeals by counsel for the other respondents - adopted by the three respondents - was the “constitutionality issue” in relation to section 23 of TO, which the CFA declined to deal with in Wong Yuk Man.

45. It should be noted that, when the CFA held that by speaking into the microphone in a forum which broadcast the discussion simultaneously to listeners of Citizen’s Radio, the speaker did not deliver messages for transmission, the CFA in effect held that such participation “will be caught” under the offence of “transmitting” under the same section 23, TO (see para 23).  Whether such a speaker will be found guilty is arguable as the constitutionality issue has not been determined.

46. It is also important to note that Chief Justice Ma had this to say (at para 39):

“Lastly, in this context, although I have declined to deal with the constitutionality issue, it should not be understood that I should be taken as endorsing the correctness of the decisions of the courts below on this issue.”

47. If the respondents were participating in something which could arguably or potentially be in the exercise of their constitutional rights of freedom of speech and expression, how then could such conduct be construed as bringing suspicion on themselves?

48. For these reasons, I find that the respondents had not brought suspicion on themselves.  There was therefore no positive reason to deprive them of the costs.  The appeals against the costs order made by the PM in their favour are therefore dismissed.

49. There is no need for me to further consider the relevance or otherwise of the effect of the history of Secretary for Justice v Ocean Technology Limited and Others, HCMA 173/2008, unreported, on the minds of some of the respondents (submitted by Mr Douglas Kwok and in effect adopted by all other respondents); or the rather interesting submission whether Hong Kong should follow the practice of the United Kingdom in that the prosecution must show not only that an acquitted defendant had brought suspicion on himself, but also that the prosecution was misled into thinking that the case against the defendant was stronger than it was (submitted by Mr Carter Chim).

Conclusion

50. For the reasons given, the appeals brought by the prosecution against all 19 respondents are dismissed.

Costs of the Appeals

51. Mr Leung had indicated, quite properly, that should the appeals be unsuccessful, costs of the appeals should be to the respondents, to be taxed if not agreed.  I make such a costs order accordingly.