HKSAR v. CHAU CHIU WONG

HCMA91/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.91 OF 2000

(On Appeal from NKCC 6214 OF 1999)

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J U D G M E N T

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1. The judgment in this appeal was handed down on 30 May 2000 when the appeal against conviction was allowed and the conviction was quashed. On 7 August 2000, the appellant's solicitors wrote a letter to the court applying for costs incurred by the appellant. That matter was referred to the Department of Justice and I made the order that if the application should be resisted or opposed, then the matter should be set down for hearing. In the event the application was opposed by the Department of Justice, which is why today was reserved for the hearing of the application for costs by the appellant.

2. The appellant now seeks the costs incurred in respect of the following events :

(1) for the trial which lasted for two days on 11 and 12 January 2000;

(2) for the bail application which was made to me on 28 January 2000;

(3) for the appeal, the hearing of which in fact only took one day, on 27 April 2000; and

(4) for costs of today's hearing.

3. Mr Madigan, appearing for the respondent, opposes the application on the basis, inter alia, that the appellant's conduct had brought suspicion upon himself. The evidence was that the appellant had been seen by two police officers pushing a trolley which was subsequently found to contain the infringing CDs and VCDs. The evidence of one of the police officers was that the appellant, when he was observed by the police officers, appeared to be nervous and was looking around and, eventually, when he was stopped by the officers, he made a verbal admission that the cartons contained infringing CDs. At the trial, the verbal admission was not relied upon by the magistrate for reasons relating to the credibility of the police witnesses.

4. Mr Tse has today submitted that if an admission has been ruled inadmissible, the court hearing the application for costs should approach the matter as if the admission had never been made. He relies upon the judgment of Mayo J (as he then was) in Cheung Bik Kwong v. A-G & Another [1999] 2 HKC 870. That particular approach by Mayo J was not followed by Beeson J in HKSAR v. Wong Pak Nin [2000] 1 HKLRD 74. Beeson J was of the view that :

"... I do not think it possible to say that on a costs application a magistrate can never take into account, for the purposes of deciding the application, the contents or provenance of a statement that has been ruled inadmissible. There may well be circumstances where although a statement is ruled out, the evidence relating to its provenance or contents may reveal that the accused brought suspicion on himself. A magistrate, in certain circumstances, must be able to examine a confession statement from one view for the purposes of determining admissibility, but from a different standpoint for the purposes of deciding an application for costs."

As I indicated to counsel during the submission, that approach by Beeson J is an approach with which I agree.

5. In so far as the prosecution is concerned, when they start a trial against a particular defendant, they have to assess the evidence in their possession and they cannot try and predict whether the trial court would accept or reject that evidence. The evidence here was that not only was the appellant pushing the trolley in which were found the infringing CDs, but he also had on his person a number of invoices which, in the event, could not be proved to have been connected to the infringing CDs. In addition to that, there was the alleged verbal admission where he had allegedly said that the cartons contained infringing CDs.

6. My view, therefore, is that by the defendant's conduct, he had brought suspicion upon himself which is a positive reason for declining him costs. Therefore the application for costs for the trial is declined.

7. As regards the bail application made to me on 28 January, that application was made before the magistrate's Statement of Findings were made available and, on the day of the application, as I said in my judgment, I did not have anything like the material which I subsequently had on the hearing of the appeal. The application for bail, even though pre-mature, was not, as has been shown by the result of the appeal, unmeritorious. The application was justified and therefore I allow the appellant's costs incurred in respect of the bail application on 28 January.

8. In respect of the costs incurred on the appeal itself, I do not agree with Mr Madigan's submission that because of the delay, the appellant should now be denied his costs of the appeal. There was a delay, but on the day the judgment was handed down, 30 May, the appellant was not legally represented and he could not therefore have made the application on that day. Mr Madigan submits that the application could have been made at the conclusion of the hearing of the appeal and before judgment was delivered. That may be so, but on the day when the appeal was concluded, there were in fact a number of outstanding matters to be resolved, one of which was that the transcript of the 2nd defendant's evidence was to be obtained to see whether the 2nd defendant, in his evidence, had in fact testified there were five invoices found on the appellant's person by the police which related to the goods which were the subject matter of the charge. So at that stage, the appellant cannot be faulted for not making the application on that day.

9. The appeal was successful and even though this has nothing to do with any default by the prosecution, the appellant should be given his costs of the appeal which I so order.

10. As regards the costs of today's hearing, Mr Tse submits that today's hearing was necessitated by the prosecution's wrongful resistance of the application for costs. My view is that the prosecution was entitled to resist the application and, as it happened, their resistance to the application for the costs of the trial was successful. Therefore in respect of today's hearing, I also decline the appellant his costs.

11. So the upshot is that the appellant is awarded his costs for the bail application made on 28 January and his costs incurred for the hearing of the appeal. These costs are to be taxed if not agreed.