HKSAR v. GURUNG DIPENDRA RAJ

HCMA 596/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 596 OF 2013

(ON APPEAL FROM ESCC 359 OF 2013)

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1.  The appellant was charged with a charge of Wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap 212. He pleaded not guilty at the Eastern Magistrates’ Court and was found not guilty after trial. He applied for an order for costs and such application was refused by the magistrate. He appealed against this determination of the magistrate.

2.  At the hearing, after having heard counsel, I allowed the appeal.  I now provide the reasons for my decision.

Facts alleged by the prosecution

3.  The appellant was employed as “security” at a club in Lan Kwai Fong.  At about 4:15am on the day of the alleged offence, PW1 and a friend (PW2) attempted to enter the club which was closing.  Both of them had been drinking heavily.  The appellant stopped them.  There were oral dispute and pushing between the two parties.

4.  The prosecution alleged that when PW1 then ran away, the appellant chased after him and used a glass bottle to hit him on the head.  The attack took place several streets away from the club.

The magistrate’s reasons for refusing the costs application

5.  When the magistrate gave reasons for her determination, she said she had considered the case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 and Hui Yui Sang v HKSAR [2006] 2 HKLRD 738, andnoted that the general rule in considering costs is that the court should normally award costs to a defendant who is acquitted unless there are reasons not to do so.

6.  The magistrate also said:

“17. The court is entitled to exercise its discretion not to award costs in circumstances where the defendant brings suspicion upon himself; where his conduct misled the prosecution into thinking that the case against the defendant was stronger than it was; and/or where the defendant was acquitted on technicality.

18. According to Tong Cun Lin, in considering whether to exercise the discretion to refuse costs, ‘… 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 . …’ ”

7.  The magistrate then went on to consider the case.  She remarked that the initial evidence against the appellant was strong.  However, in the light of the inconsistencies between the prosecution witnesses’ evidence relating to identity and the failure of the prosecution to clarify matters relating to quality of the identification evidence, she found that a conviction based on such identification evidence would be unsafe.

8.  The magistrate also observed that the evidence of the two defence witnesses was inconsistent with that of the appellant and she had grave doubt as to whether the account given by the appellant at the interview was truthful.

9.  She said she had considered all the facts of the case and matters she set out in her written reasons before she reached the decision to refuse a costs order.

Grounds of appeal

10.  Counsel for the appellant, Mr James HM McGowan, who also represented the appellant at the trial put forward the following grounds:

(1) there is no evidence or finding of any “positive behavior” on the part of the appellant which is required as basis to find that an acquitted accused had brought suspicion upon himself;

(2) the magistrate erred in taking into account the strength of the prosecution case in exercise of her discretion;

(3) the magistrate erred if she regarded the result of the case a technical acquittal;

(4) there is no finding that the appellant had misled the prosecution in any way;

(5) the magistrate failed to state precisely the grounds upon which he exercised his discretion and the facts relied upon by him in coming to her conclusion; and

(6) the magistrate misapprehended the facts or erred in principle in exercising her discretion.

Discussion and consideration

11.  I do not consider it necessary, in the particular circumstances of the case, to consider this appeal by discussing each ground in turn.

12.  The principle in determining whether a cost order should be made in favour of an acquitted accused is well established.  What set out by the magistrate is what generally should be borne in mind in exercising of the discretion.

13.  This is obviously not a case of “technical acquittal”.

14.  The magistrate stressed that the prosecution failed to prove the identity of the assailant beyond reasonable doubt.  I have no reason to diverge from her judgment in this aspect.

15.  The magistrate quoted certain examples of matters which caused her concern in the quality of the identification evidence.  With respect, I am of the view that the matters did not confine to quality of the identification evidence, quite a few of them relate to credibility assessment as well.  Just to quote two of these matters:

(i) PW1 said he did shout back to the appellant when he was running away, PW2 said PW1 had never done so.

(ii) PW1 said there were two men running after him, and the evidence of PW2 was that there should only be one man chasing.

16.  The magistrate also said she noted that PW1’s evidence was inherently contradictory, this went to credibility assessment rather than assessment on identification evidence.

17.  In any case, even if the acquittal was a result of unsatisfactory identification evidence, it without more may not be sufficient ground to refuse costs.

18.  In Tong Cun Lin, Litton PJ said what a judge (and a magistrate) is not entitled to do is to “indirectly, thereby punishing [an acquitted accused]by taking a view of the facts palpably different from that taken by the jury and reflected in the not‑guilty verdict”.

19.  In Ting James Henry v HKSAR (N0 2) (2007) 10 HKCFAR 730, afterexplaining that an accused might have brought suspicion upon himself not only by virtue of his conduct during investigation or at trial, he might have done so by his conduct which formed part of the setting for the charge laid against him, Li CJ said:

“16. .... provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”

20.  Mr McGowan stressed there was no “positive behavior” on the part of the appellant, or at least there is no finding of such by the magistrate, which justified an assertion that the appellant had brought suspicion upon himself.

21.  A matter which the magistrate had taken into account in making her decision was inconsistencies which she found exist between what the appellant said during the interview and the testimony of the two defence witnesses. She noted that the appellant said PW1 pushed him first but what the two witnesses said was the other way round.  Ms Rosa Lo, SPP (Ag), appearing for the respondent, fairly conceded that the observation of the magistrate was not supported by evidence and indeed the versions provided by the appellant and the witnesses were consistent in this aspect.  She, however, pointed to other inconsistencies which she submitted was material and justified to be taken into account in exercising of the discretion.  The inconsistencies she noted were in connection with the pushing at the club.  I cannot agree that the inconsistencies have such a degree of importance in consideration of the matter.

22.  In all the circumstances, I do not find there are sufficient and safe grounds to find that the appellant had brought suspicion upon himself, and in any case to deprive the Appellant with costs. 

23.  I therefore allowed the appeal and ordered the respondent to pay the appellant costs of the trial.

24.  Mr McGowan then applied for costs of the appeal.  This application was not opposed.  In my judgment it is justified and I therefore also made an order that the appellant to have the costs of the appeal.

25.  Both costs are to be taxed if not agreed.