HKSAR v. WONG TAK WAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT CRIMINAL CASE NO. 178 of 1998

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J U D G M E N T

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1. The defendant was indicted on one count of trafficking in herein. After a six day trial, the jury acquitted him. Thereupon, counsel for the defendant applied for costs. The application was adjourned to another day for arguments. I have now heard the arguments. Since the arguments are somewhat tied to the circumstances of the case, I should recount the case before the jury.

2. In September 1997, the Customs and Excise mounted a surveillance operation. The operation mobilized, at its height, about two dozen officers and a total of 15 people were targeted at one stage or another. On 22nd September 1997, a man surnamed LEE was stopped by the surveillance team and found to have nine bricks of herein in a bag carried by him at the time. A search was conducted at LEE's flat and two more bricks of herein were found inside a suitcase in the flat.

3. The eleven bricks of herein each weighed more or less 350 gms with purity varying from 210 gms to 260 gms. Each brick was wrapped by transparent cellophane plastic foils and tapesd over with a common type of packaging adhesive tapes. On the packaging adhesive tapes around one of the bricks, the right thumb print of the defendant was found. On the tapes around another brick the print of the defendant's left ring finger was found. That is all the evidence connecting the defendant to the hereon. The defendant was not sighted during the surveillance operation.

4. In January 1998, Customs and Excise officers began to look for the Defendant. Eventually, in February 1998, the defendant voluntarily reported to Customs offices. He was interrogated about the drugs. He said he knew nothing about the drugs. When he gave evidence at the trial, the defendant said that the packaging adhesive tapes on the bricks looked like ones used in the restaurant operated by his family and in the transportation business run by his second elder brother. The second elder brother had rolls of such tapes in a box in his goods vehicle.

5. The defendant was indicted for trafficking in just the two bricks of heroin said to bear the defendant's finger-prints.

6. The defence position, put by Mr. Deleney to the jury, was that the evidence of the police expert who did the finger-print comparison was unreliable. The prints on the tapes were not the defendant's. Even if the prints on the tapes belong to the defendant it was quite possible that the defendant left his finger prints on a roll or rolls of package adhesive tapes which were then taken and used by someone unknown to package the bricks of herein. Even if the defendant did touch the tapes in the condition as they were found by Customs officers, there was insufficient evidence to prove knowledge of the drugs or trafficking. Moreover, the conduct if the defendant during investigation was inconsistent with quilt. Finally, the defendant had no record of any drug offence.

7. I believe I endeavored to remind the jury of all the points relied upon by the defence. In addition, the jury was told that the rolls of packaging adhesive tapes on the defendant's brother's goods vehicle could have been surreptitiously taken by anyone and used to package the herein. The jury was also advised to pay attention to the prosecution evidence relating to the identification of the individual bricks of herein. Even if the jury was satisfied that the defendant did touch two of the packaged bricks of herein, the Customs officers may well have mixed up the bricks so that the two bricks said to bear the defendant's finger prints were in fact another two. If there was such a mix up, the charge was wrong. Even though this is a technical point, it is analogous to charging someone stealing something he did not steal even though he did steal something else. In so directing the jury, I had in mind that the correct identification of the drugs also goes to sentence upon conviction.

8. From the above account, it will be appreciated that it is really anybody's guess as to the basis on which the jury acquitted the defendant. The jury could have rejected the finger-print expert's evidence as unreliable. The jury could have found that the defendant left his finger prints on the tapes on innocent occasions. The jury might have felt some lurking doubt and gave the defendant the benefit of it. Last but not the least, the jury might have acquitted the defendant on the technicality that the Customs officers mixed up the bricks. For what it is worth, the jury returned its verdict on a 5-2 majority.

9. Counsel for the defendant applied for costs under section 5 of the Costs in Criminal Cases Ordinance, Cap. 492. That section reads:-

"Where after trial, in the District Court or the High Court a defendant is acquitted, the District Court or the High Court may order that costs be awarded to the defendant."

10. Both the prosecution and the defence agree that the said Ordinance does not provide further guidance on the principles or basis on which costs may be awarded to the defendant. Both sides sang in unison that it should be a matter in the discretion of the court.

11. In the course of counsel's arguments, I interposed with two issues.

12. First, I asked for the meaning of "court" in the context of section 5 of the Costs in Criminal Cases Ordinance, Cap. 492. Since this case was tried by jury, I wondered if court in this context refer to the jury. In other words, the question of costs should be decided by the jury, not me. Both counsel were totally surprised. Their immediate reaction was that question of costs has never been left to the jury.

13. I put to counsel that, historically and presently, the function of the jury is not limited to rendering verdict of guilty or not. A jury may be asked to return a special verdict, a jury may be asked to decide on specific questions of fact, a jury in a civil case may be asked to decide on the damages to be awarded. In the instant case, for example, had the defendant been charged with trafficking in all eleven bricks of herein, if the defendant were found guilty, the circumstances of the case would require me to ask the jury to decide specifically whether they find the defendant guilty for all eleven bricks, nine bricks or just the two bricks bearing the defendant's finger prints because the quantity would go to the sentence.

14. Mr. Chan for the government accepted that, beyond guilt or not, a jury may be asked to decide more. He gave the example of a jury returning a guilt verdict on manslaughter may be asked about the basis of their verdict to assist the judge in deciding sentence. On this premise that a jury may be asked to decide ancillary matters, I asked counsel if one should look at the rationale for such extended function for the jury. Mr. Chan replied that the exception apparently applies to matters affecting sentence only. I said there are authorities to the effect that decisions on costs should be treated as sentence. Mr. Chan pointed out that in this case costs have nothing to do with sentence. Of course, I agreed, but in forensic analysis, if it is accepted that a jury may be asked to decide on issues relating to sentence, sentence being a consequential matter, why can't the jury be asked to decide on issues relating to another consequential matter - costs? Why should the function of the jury be narrowed to one type of consequential matter?

15. The debate was stopped short because Mr. Chan asked for leave to revert to his prepared submission. Mr. Deleney, in the light of this, naturally did not make any comment on this issue.

JUDGE OR JURY

16. The issue of whether the question of costs should be left to the jury after a trial by jury is not long dead and buried. The issue, in my view, has been revived by the Costs in Criminal Cases Ordinance,, Cap. 492. That Ordinance, both counsel agreed, was passed to remove inconsistencies and anomalies in the law on costs in criminal cases. That Ordinance came into effect on 17th January 1997. As far as I am aware, the precise interpretation of that Ordinance has not been subjected to critical analysis. In my view, one has to compare and contrast the wordings in sections 5, 6 and 7 of the Ordinance:-

5. Where after trial in the District Court or the High Court a defendant is acquitted, the District Court or the High Court may order that costs be awarded to he defendant.

6. Without affecting the power conferred on a magistrate under section 3(1)(c) or, on the District Court or the High Court under section 5 to order that costs be awarded to a defendant who is acquitted, where a defendant who is charged with the commission of more than one offence is acquitted of one or more than one but not all of any of such offences, the court may in relation to all or any of such acquittals order that costs be awarded to the defendant.

7. Where a judge directs that a defendant be discharged under section 16 of the procedural Ordinance, the judge my order that costs be awarded to the defendant.

It should be pointed out that section 2 of the Costs in Criminal Cases Ordinance defines

"Court" includes a magistrate, the District Court, the High Court and the Court of Appeal.

17. "Judge" means a Justice of Appeal, a judge of the High Court, a records of the High Court and a deputy judge of the High Court.

18. Now, it is at least arguable that the new Ordinance draws a careful distinction between judge and court. Section 7 of the Ordinance explicitly vests power in the judge to award costs in a trial by jury where the judge directs that the defendant be discharged. But in other trial by jury cases the power to award costs is vested in the court. The distinction is seen again in section 13 of the Ordinance which reads:-

"Where a defendant unsuccessfully appeals ...... and the judge or the Court of Appeal is satisfied that the appeal or the application, as the case may be, is or was without merit, the judge or the Court of Appeal may order that costs be awarded to the prosecutor."

If seems to me that "court" means the court as fully composed and "judge" means the presiding judge alone. Re-enforcement of this distinction can be found in section 15 of the Ordinance our legislature or the legal policy is not to make such distinction, the relevant provisions in the Ordinance can all be worded simply "the court".

19. I have not lost sight of section 32(2) of the High Court Ordinance, Cap. 4. That subsection says that:-

(2) The proceedings in every action or matter subsequent to the trial or hearing, down to and including the final judgment or order, and any application for leave to appeal or for a stay of execution shall, so far as is practicable and convenient, be taken before the judge of the High Court before whom the trial or hearing took place.

20. This subsection is the basis for the presiding judge to deal with consequential matters after trial by jury. But the basis is not absolute. A judge deals with consequential matters sitting alone only when it is practicable and convenient. That is why when questions of fact or other issues affecting sentence hinge on the basis of the verdict returned by the jury, the jury is asked to resolve them even after they have delivered the verdict.

21. In the premises, at least three alternative approaches may be taken:-

(1) As a result of the coming into effect of the Costs in Criminal Cases Ordinance Cap. 492 in 1997, the decision to award costs to either party should always be left to the jury unless section 7 of that Ordinance applies; or

(2) Notwithstanding the Costs in Criminal Cases Ordinance, Cap. 492, the decision to award costs to either party may be left to the jury where the presiding judge considers that it is impractical or inconvenient for him or her alone to deal with; or

(3) In any event the decision on costs must be made by the judge alone but the judge in appropriate circumstances should ascertain from the jury the basis of their verdict or their findings on issues germane to consideration on costs.

22. Whether decision on costs should be reserved exclusively to the jury is a matter of policy. But, in my view, at the very least a discretion should be left to the judge to decide whether in the peculiar circumstances of a case the question of costs should be left to the jury and, even if the judge decides that he should make the order on costs he may consult the jury on general or specific questions. And I think existing laws do permit such discretion. In any event, I think it would be most desirable that application for costs should be made before the jury is released.

PRINCIPLES OR TESTS

23. Both counsel appeared to think that the test adopted by Penlington J. in Ng Yui-kin and Others v. The Queen [1983] HKLR 356 still applies. They believe that that test has been approved by the Court of Appeal in The Queen v. Kwok Moon-yan and Lok Man-chiu [1989] 2 HKLR 396.

24. Ng Yui-kin was a decision on the now repealed section 73A of the Criminal Procedure Ordinance, Cap. 221. There, Penlington J. (as be then was) held that the long established practice of English courts must be followed which is that an order for costs in favour of an acquitted defendant should normally be made unless (a) the prosecution had acted spitefully or unreasonably, (b) the defendant's own conduct had brought suspicion on himself and misled the prosecution or (c) the defendant was acquitted on a technicality. For ease of reference, I shall call this the English Test.

25. Moreover, Mr. Delaney, very helpfully, drew my attention to an article by Mr. Wilkinson in the Hong Kong Law Journal (1991) pp. 153-180. This article traces the history of award of costs to, inter alia, acquitted defendants. I think it is fair to summarise the main points in the present context in that article as:-

(1) over a period of many years, English criminal courts have gradually opened the way to acquitted defendants to recover their defence costs.

(2) the latest position developed through a series of practice notes issued by English courts is that a defendant acquitted by the jury should be awarded costs unless one of the three limbs of exceptions in the English Test applies, and

(3) Hong Kong courts have adopted the latest practice of English courts.

26. Mr. Chan for the government, I surmised, had no quarrel with his counter-part over the applicability of the English Test.

27. But I wonder whether the English Test should still apply after the enactment of the Costs in Criminal Cases Ordinance Cap. 492. Section 15 of the Ordinance sets out the General Principles on which costs may be awarded:-

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appears to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings including any proceedings preliminary or incidental thereto;

(b) a court as a judge may have regard to any assessment laid before it or him for their assistance by any party to the proceedings of the amount of costs properly so incurred by any such party;

(c) an order as to costs shall be such as a court or a judge considers just and reasonable;

(d) the amount to be paid in pursuance of an order as to costs shall unless an order for taxation is made under section 20, be specified in that order;

(e) the question of whether or not an order as to the costs ought to be made in respect of any expenses properly incurred by any party to the proceedings in the course of the proceedings, including any proceedings preliminary or incidental thereto, may be adjourned until the end of those proceedings;

(f) a court or a judge may take into account any other order as to costs which has been made in respect of those proceedings.

28. In my view, these principles must be deemed to over-ride any previous principles or practice. The essence of the statutory principles is that "an order as to costs shall be such as a court or judge considers just and reasonable." Just and reasonable is the criteria. It is no longer appropriate to take a clinical approach by analyzing fine points of law or split hair distinctions on facts to determine whether, say, the defendant was acquitted on a technicality. The criteria is what a reasonable man would decide is just.

29. If this view is correct, there is all the more reason to leave the decision on costs to the jury whom, by definition, is the embodiment of the reasonable man and who are supposed to represent society's views on what is just.

PRACTICAL AND CONVENIENT

30. Even if the new regime under the Costs in Criminal Cases Ordinance, Cap. 492 does not place the decision on costs exclusively on the jury, I venture to suggest that at least in some cases where it is impractical or inconvenient for the judge alone to decide, the jury may be asked to decide or asked to participate in the decision.

31. Take the instant case, both counsel agree that because the jury does not disclose the basis of their verdict, I am not in a position to say whether the defendant was acquitted on a technicality. So, if the English Test is to be applied, it is impractical for me alone to decide on the question of costs.

32. If the just and reasonable criteria under the Costs in Criminal Cases Ordinance, Cap. 492 is to be applied, what is just and reasonable depends very much on what facts the jury found to have been proved. But neither I nor any other judge will ever be in the position to know the findings without asking the jury.

33. Mr. Chan and Mr. Deleney thought that my decision in this case turns on whether the defendant's conduct brought suspicions on himself. Mr. Chan argued that the defendant did not tell the investigation officers that he could have innocently left finger prints on rolls of packaging adhesive tapes in the course of his work at the family restaurant business or the brother's transportation business. Had he said so, the Customs officer would have investigated further and if plausible innocent connection could not be eliminated there would have been no prosecution. Unfair point, said Mr. Deleney, because the defendant was told only that his finger prints were found "on the drugs". There was no reference to the tapes. The defendant was not shown the drugs or the tapes during the investigation. The photos of the drugs as packaged shown to the defendant were of such quality that the defendant could not quite notice the tapes.

34. I do not know what to think! For all I know the jury might not believe the defendant when he said that the family restaurant business or the brother's goods vehicle had rolls of packaging adhesive tapes. The jury might have found that that part of the defendant's evidence was only a red herring to create a plausible explanation as to how his finger prints might innocently be left on the tapes. If the jury rejected this part of the defendant's evidence, how can I logically deal with the absence of explanation?

35. In a case where there are multiple defendants and multiple charges and not all charges are found proven, imagine how more difficult it will be for the judge alone to make an order for costs that is "just and reasonable".

BURDEN AND STANDARD

36. The other issue I asked counsel to assist me was, assuming the English Test still applies, whether the burden is on the applicant, not on the opposing side, to satisfy the court that the case does or does not come within any of the three limbs of exception in the English Test.

37. Mr. Deleney submitted that, in the Kwok Moon-yan case, the Court of Appeal held that there is no "standard of proof" in the accepted trial sense when dealing with an application for costs. Hence there is no burden of proof either.

38. I do not wish to, nor am I in a position to, go into the question of standard of proof. But I wonder if there is not a duty on an applicant to draw to the attention of the court all the pertinent facts and factors relevant for decision.

39. Another matter which I did not raise with counsel but on reflection I think is important is whether a decision on costs must be based only on evidence produced at the trial. It is not inconceivable that in some cases a party may wish to adduce materials not relied upon at the trial proper to buttress the case on costs.

CONCLUSION

40. At the conclusion of the trial in this case, I was still holding the jury lest the parties might bring up any matter that might call upon the services of the jury. Mr. Deleney specifically asked me to release the jury before he proceeded to make the application which is the problem I now have to deal with alone.

41. If the decision on costs according to section 5 of the Costs in Criminal Cases Ordinance, Cap. 492 must be made by the jury. This application was made after the jury had been released at the request of the applicant, I see no reason why the applicant should be entitled to any order. On this ground alone, I should dismiss the application.

42. If pursuant to section 32(2) of the High Court Ordinance, Cap. 4 the question of costs may be left to the jury where it is impractical or inconvenient to decide, I hold that the present case is such that the jury should be asked to decide. The applicant precluded the jury from deciding, the applicant is not entitled to any order. On this ground too, the application should be dismissed.

43. If the decision on costs must be made by me but I should in the circumstances of this case and I may pursuant to section 32(2) of the High Court Ordinance, Cap. 4 seek clarification from the jury on certain crucial issues, the applicant having precluded me from doing so, I make no order on this application.

44. In any event, if I must decide in the absence of the jury, having regard to the principles enumerated in section 15 of the Costs in Criminal Cases Ordinance, Cap. 492, on my own assessment of the evidence, I find that the jury might well here acquitted the defendant on a technicality, the technicality being that either the expert evidence on comparison of finger prints was rejected or that there was a mix-up of the bricks of herein whereby the defendant was charged for the wrong bricks. These are technicalities in the sense that either the failure was entirely beyond the control of the prosecution who have exercised due diligence or that the failure was due to a fault in form or procedure without prejudice to justice in the general sense which had it not occurred the jury might well have convicted. Of course the jury might have acquitted on some other basis. But there being no standard of proof for this application the applicant is not entitled to any benefit of the doubt. In the premises, it is not just and reasonable to award costs to the defendant.

45. Accordingly, I make no order as to costs.