HKSAR v. HUNG KI YU

[English Translation - 英譯本]

HCMA 180/2020

[2022] HKCFI 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 180 OF 2020

(ON APPEAL FROM WKCC 264/2020)

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J U D G M E N T

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1.  The appellant was found not guilty of a charge of theft by the magistrate after trial.   The appellant applied for costs, arguing that she had not acted in any way bringing suspicion on herself or misled the prosecution into thinking that the basis for prosecution was stronger than it was.  At the trial, the appellant was represented by senior counsel and junior counsel.  The magistrate did not grant a certificate for the senior counsel and only allowed the costs of the junior counsel and that of the solicitors.

2.  The appellant appeals against the order made by the magistrate.

Reasons for the decision

3.  On 31 December 2019, at the Marks & Spencer (M&S)  in Olympian City 2, the appellant took a pair of trousers from a display table at the women’s wear section and a box of chocolate from the food section and went out of the store.  She suddenly turned back, put the two pieces of goods into her handbag and covered them with an item of black clothing. A security guard of M&S went up and got hold of her.  The appellant held the security guard back, saying that she wanted to go back into the store to make payment.

4.  The appellant testified that after she had taken the goods in question, she was “spaced out” and hence was unaware of having left the store herself.  Once she realized that, she turned back to return to the store to make payment but was stopped by the security guard.  The appellant called a psychiatrist to give evidence.  The psychiatrist said that the appellant had suffered from “adjustment disorder with depressed mood” since August 2019, and on the basis of the information provided by her, she inferred that the appellant went out of the store at the material time because of “being spaced out”, but she agreed that she could not confirm whether the information provided to her by the appellant was true or not.

5.  Having considered the evidence in the case and watched the CCTV footage of the store, the magistrate did not think that the appellant appeared to lose herself when she was selecting goods, so he did not accept that she was unaware of having left the store due to “being spaced out”.  The magistrate regarded the psychiatrist’s evidence not helpful in assessing the mental condition of the appellant at the material time and indicated that he did not accept the appellant’s evidence.

6.  As for the evidence of the security guard of M&S, since she did not tell the police officer(s)  who attended the scene for investigation that the appellant had put the goods in question into her handbag and covered them with a piece of black clothing, coupled with the absence of such record in her witness statement, the magistrate thought that she could not be sure whether the appellant had done so or not.   On such basis, the magistrate found that the prosecution was not able to prove all the elements of the offence of theft beyond all reasonable doubt, namely [failing to prove] that the appellant’s conduct was dishonest, and found the appellant not guilty of the charge.

Application for costs

7.  The appellant applied for the costs of the trial, arguing that she had not acted in any way bringing suspicion on herself or misled the prosecution into thinking that the basis for prosecution was stronger than it was.  The magistrate agreed that the appellant had not acted in any way that brought suspicion on herself and therefore ordered her be awarded the costs of the trial.  Nevertheless, having considered the nature and seriousness of the offence, the complexity of the case as well as the punishment that the appellant might face, he came to the view that it was not sensible for her to have instructed one senior counsel and one junior counsel to defend for her.  He regarded that the junior counsel was fully capable of handling the present case, and therefore granted a certificate only for the junior counsel and the solicitors.

8.  The appellant appeals against the said costs order, arguing that the magistrate should have allowed the costs of the senior counsel acting for her as well, and that if this Court thinks only the costs of one counsel should be allowed, it should be the costs of the senior counsel.

Discussion

9.  Mr Tony Li, representing the appellant, pointed out that the magistrate was wrong in principle for merely allowing the costs of the junior counsel of the trial, but refusing to grant a certificate for the senior counsel.  Miss Hermina Ng, Senior Public Prosecutor, representing the respondent, objected to the appeal, emphasising that the magistrate was not in any way wrong in principle when he exercised his discretion to order the prosecution to pay only the costs of the junior counsel and the solicitors.

10.  After hearing the submissions made by Mr Li and Miss NG, this Court considered that it was necessary to first deal with whether the magistrate’s decision of awarding costs to the appellant was correct. Therefore, the two parties were requested to make submissions in writing on the following two issues:

(a)  whether it is within the jurisdiction of this Court to reverse or set aside the magistrate’s order of awarding costs to the appellant; and

(b)  if it is, whether this Court should exercise such power within its jurisdiction.

11.  There is no dispute between the two parties that the power of the Court of First Instance in dealing with magistracy appeals is set out in section 119 of the Magistrates Ordinance (Cap 227).

“119 Release from custody by a magistrate and powers of the judge on appeal

In the case of any appeal to which section 105 or 113 applies — —

…

(d)  the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;

(e)  the powers of the judge under paragraph (d)  shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate might have awarded;

…

(g)  where an appellant has been convicted of an offence and the magistrate could on the complaint or information have found him guilty of some other offence, the judge may, if he considers that the magistrate must have been satisfied of facts which proved the appellant guilty of that other offence, substitute for the conviction recorded by the magistrate a conviction of that other offence and pass such sentence in substitution for the sentence passed by the magistrate as may be warranted in law for that other offence.”

12.  The appellant contended that it was not within the jurisdiction of this Court to reverse or set aside the cost order made by the magistrate. By referring to Archbold Hong Kong 2021, paragraph 7-40, Mr Li submitted that section 119(1)(d)  was only available to the defendant or a person aggrieved by the conviction, or order, or determination of a magistrate and not available to the prosecution.  This is plainly a misconception.  The said passage in Archbold was an explanation of the procedures of lodging an appeal and not an elaboration of the application of section 119(1)(d).  It says that under section 113, such person may lodge an appeal by way of “appeal by notice” which is a procedure not applicable to the prosecution, because in the event that the prosecution intends to appeal, the application is to be made by way of “case stated” under section 105.

13.  Mr Li further submitted that since the appellant in the appeal only sought a variation of the cost order made by the magistrate, and neither the appellant nor the respondent asked for reversing the said order, it was then beyond the jurisdiction of this Court to reverse the said order.  In my view, such interpretation simply goes against the content of the Ordinance.  Under section 113(1), any person aggrieved by any conviction, order or determination of a magistrate in respect of any offence may appeal.  Section 119(1)(d)  confers power on the court hearing the appeal (“the appellate court”)  to confirm, reverse or vary the magistrate’s decision.  This shows that when there is an appeal against an order made by a magistrate, the appellate court may confirm, reverse or vary the order.  Mr Li’s argument would unreasonably restrict the power of the appellate court without sufficient justifications.

14.  Mr Li has particularly referred to the content of section 119(1)(e)  and 119(1)(g).  The former states that the powers conferred by section 119(1)(d)  on the appellate court include passing punishment, whether more or less severe than what has been imposed by a magistrate, without going beyond the penalty which the magistrate could impose.  The latter states that where the appellate court considers that the magistrate must have been satisfied of facts which constitute another offence, the appellate court may substitute for the conviction given by the magistrate a conviction of that other offence and pass an appropriate sentence in substitution for the sentence passed by the magistrate.  In Mr. Li’s view, in relation to an appeal against sentence or conviction, if the appellate court could enhance the sentence or substitute the conviction with another conviction pursuant to section 119(1)(d), it would not be necessary to have added in section 119(1)(e)  and 119(1)(g).  He stressed that these two paragraphs of the provision had expanded the powers conferred on the appellate court by section 119(1)(d).  Therefore, without any expansion of the power of the appellate court to reverse or set aside a costs order made in a magistrate’s court, with respect to an appeal seeking variation of a costs order, the appellate court had no power to reverse or set aside the costs order.

15.  I do not agree with this view.  Section 119(1)(e)  states that the powers of the appellate court under section 119(1)(d)  “include” the power to increase or reduce the sentence imposed by the magistrate.  The use of the word “include” in the provision is an obvious indication of the purpose of setting out the powers of the appellate court more clearly, instead of expanding them.  Further, section 119(1)(g)  only clearly explains the power of the appellate court in relation to an appeal against conviction and does not increase the power conferred on the appellate court in this regard by section 119(1)(d).

16.  The wording of section 119(1)(d)  is in fact very succinct and precise and the meaning is clear and definite, which is that the appellate court has the power to confirm, reverse or vary a magistrate’s decision.  Therefore, there is simply no need to further elaborate in relation to a costs order.  Obviously, by section 119(1)(e)  and 119(1)(g), the legislature merely intended to set out the scope of application of section 119(1)(d)  more clearly.

17.  As it was pointed out in HKSAR v Kong Ho Wing and 2 Others [2021] HKCFA 9 (FAMC 33/2020), cited by the respondent, section 119(1)(d)  gives the court dealing with appeals from magistrates a wide discretion as to what the interests of justice require in disposing of the appeals.

18.  My conclusion is that pursuant to section 119(1)(d), this Court has the power to confirm, reverse or vary the costs order made by the magistrate in the present case.

19.  The next issue to be considered is of course whether this Court should exercise the said power to reverse the costs order made by the magistrate.  In Tong Cun Lin v HKSAR (1999)  2 HKCFAR 531, the Court of Final Appeal has explained the principles in relation to award of costs.  Unless there are positive reasons, an acquitted defendant should not be deprived of his costs.  Positive reasons include whether the defendant has brought suspicion on himself, whether his behaviour has misled the prosecution into believing that they have a case stronger than what it actually is, and whether the acquittal was the result of a technicality although there was an overwhelming case against him.

20.  In Tong Cun Lin, the Court of Final Appeal had this to say (page 535):

“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 costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must 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, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – it follows that, generally speaking, 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: These too are relevant to the exercise of the discretion to 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 the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

21.  In HKSAR v 李淑妍, HCMA 451/2011, after analyzing some relevant cases, the Court of First Instance elaborated on the principles in relation to costs as follows:

“Generally speaking, when an appellant succeeds on appeal or a defendant is found not guilty, he should be compensated (out of public revenue for the costs incurred in defending the charges against him). Despite this general rule, depending on the circumstances, the court may also exercise its discretion to refuse awarding costs to the successful appellant or the defendant. In exercising the discretion, the court must examine the appellant’s or the defendant’s conduct in general, including the appellant’s or 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 and the consistency of those answers with his subsequent defence. Surely, the strength of the prosecution’s case and the circumstances under which the appellant or the defendant came to be acquitted, etc are also relevant factors for the court to consider whether to exercise the discretion to refuse the appellant’s or the defendant’s application for costs. (see HKSAR v Tong Cun Lin [2000] 1 HKLRD 113 and HKSAR v Hui Yui Sang [2006] 2 HKLRD 738, etc).”

22.  The appellant and the respondent had no dispute on the legal principles involved. The appellant contended that this Court should not reverse the magistrate’s order.  Mr Li submitted that the appellant had not acted in any way bringing suspicion on herself and emphasised that without the transcript of the witnesses’ testimony at the trial and the CCTV footage of the shopping centre, this Court did not have sufficient information or evidence to reverse the magistrate’s finding that the defendant had not acted in any way bringing suspicion on herself.  He further submitted that the magistrate awarded costs to the appellant by exercising his discretion, which this Court should not interfere.

23.  The respondent contended that the court should set aside the magistrate’s costs order.  Miss Ng submitted that there was sufficient information in the appeal bundle for this Court to decide on the magistrate’s order.  She also emphasised that the appellant’s own conduct had actually brought suspicion on herself, and therefore she should not be awarded the costs.

24.  The magistrate has summarized the testimonies of all witnesses and evidence in the case in details in his statement of findings.  The evidence that I could examine also includes the M&S CCTV footage, the photos depicting the setting, layout and surrounding environment of M&S and the CCTV footage tendered by the appellant, as well as the transcripts of the hearings on verdict and costs application, and so on.  In my view, there is sufficient information to assist this Court in deciding on the costs order made by the magistrate.

25.  The issue in the present case is whether the appellant acted in any way so that she brought suspicion on herself. I agree with Mr Li that the conduct relevant to this issue is the defendant’s conduct during the investigation and at the trial.  As one can see from the passage extracted above, the Court of Final Appeal has indeed expressed such view in Tong Cun Lin.  However, the Court did not say that the court should not consider whether a defendant’s conduct during the course of the offence has brought suspicion on himself.  In the subsequent case of Ting James Henry v HKSAR (2007)  10 HKCFAR 730, the Court of Final Appeal said as follows (at para 16):

“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 (and the authorities give no warrant for suggesting)  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 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.”

26.  Obviously, when the court is to decide the award of costs to a defendant, the defendant’s conduct during the course of the offence may and should be taken into account.

27.  In the present case, having considered the evidence of the case, the magistrate found that the appellant had not acted in any way bringing suspicion upon herself and therefore awarded costs to her.  This is the magistrate’s discretion, which, generally speaking, the appellate court should not intervene.  However, the magistrate seemed to have contradicted himself when he considered this issue.  In his statement of findings, he said:

“41. The defendant said she was unaware of having stepped out of M&S and left the store area. In my view, this is absolutely impossible for the following reasons: as shown in the defence photos exhibit D1, the colour of the floor tiles outside the access to the confectionery section and the shopping mall was distinct. The area outside the confectionery section obviously belonged to the shopping mall, and there were playing facilities for children just near the shopping mall area outside the confectionery section (see photo 4 of exhibit D1). As to the route taken by the defendant after leaving the store, she first walked past a more spacious entrance/exit to the women’s wear section (see photo 3 of exhibit D1). After that, there were different shops on the left side along her route (see photo 3 of exhibit D1 and exhibit P7)  while on her right, there were two sets of M&S glass shop-window (see exhibit D2, the CCTV footage). That glass shop-window not only composed of one set of showcase, and also it was installed outside the store. Inside the shop-window, there were also displayed mannequins wearing clothes of the same design. The defendant also agreed in her testimony that she had seen those shop-windows. Along the defendant’s route, there was no display of M&S goods or racks of clothes or confectionery, nor any staff in M&S uniform. From the access to the confectionery section where the defendant walked out to the position where she turned round, the distance of the entire route was about 10 metres. All the above circumstantial evidence clearly showed that the defendant had already left the M&S store. She could not possibly be unaware of having left the M&S store area in light of the above circumstantial evidence. In my view, it is just not possible that the defendant could have been mistaken about the area within the store. The defendant’s claim that [she] had no idea or had misconception about the area within the store was just unreasonable.

…

44.  As shown in the CCTV footage (exhibit P8), the defendant did not appear to lose herself in the course of selecting goods. When she was selecting goods in the store, she first picked the pair of stockings [sic] in question. As a matter of convenience, she chose to fold up the stockings in half at least twice before walking to the confectionery section where she picked up the chocolate in question.  Afterwards, thinking that her friend(s)  might like some of the chocolates there, she took photo(s)  with her mobile phone in the direction of the chocolate racks.  After that, she left the store right away without lingering inside.  All these acts must be performed with consciousness.  I cannot see why at the moment of leaving the store, she was suddenly spaced out or unaware that she had already left the store.”

28.  After that, the magistrate further accounted for the basis on which he was not satisfied that the appellant was unaware of having walked out of M&S, including the fact that she had folded the black trousers in half to make them into a smaller shape, and he also said that the appellant’s behaviour did not make sense and was very suspicious.

29.  When he considered whether or not the appellant should be awarded cost, he only considered if she had done anything which brought suspicion on herself in the course of police investigation without taking into account that in his verdict, he had found that momentary carelessness was not the reason for which the appellant had gone out of M&S.  He said the following:

“58.  The Prosecution objected because by leaving the store without making payment, the appellant had brought suspicion on herself.  Having read the relevant cautioned statement, I realised that the defendant had indicated in her statement, “Since the layout of the store was not the same as before, I did not know that I had left the store.  So I had the items in my hand(s)  without making payment.  I did not steal anything.”  Moreover, as shown in the relevant CCTV, the defendant had turned back and walked to the exit/entrance to the women’s wear section and the confectionery section before she was stopped. Therefore, having regard to the evidence as a whole, I do not think that she had performed in any way which brought suspicion on herself.”

30.  Having already rejected momentary carelessness to be the reason for which the appellant stepped out of M&S, the magistrate naturally could not possibly accept the appellant’s explanation given in the record of interview to be true.  It is plainly not proper that on one hand, he refused to accept what the appellant said in defence, but on the other hand, he regarded her version as one of the factors suggesting that she had not done anything bringing suspicion on herself.

31.  According to the findings of the magistrate, the appellant had not gone out of M&S for about 10 metres and even folded up the trousers in her hand twice into a smaller shape in a condition of not being aware of the surroundings. Mr Li argued that it was natural for general shoppers to fold up clothing in half for easy holding, and therefore the magistrate’s conclusion that it was a suspicious act was wrong.

32.  I am of the view that whether such act aroused suspicion depends on the circumstances at the material time.  The appellant folded up the black trousers in half, and afterwards left M&S with the trousers and a box of chocolate in her hand(s).  The combined effect of the two acts certainly amounted to suspicious conduct.  The security guard of M&S even alleged that the appellant had put these two pieces of goods into her handbag and covered them with a piece of black clothing.  Of course, since the magistrate did not accept the evidence in this regard, this Court would not take it into consideration.

33.  According to the finding of facts made by the magistrate, it was not out of carelessness that the appellant left M&S for about 10 metres with a pair of folded black trousers and a box of chocolate in her hand(s)  without making payment.  He found the appellant not guilty because the prosecution failed in proving that the appellant’s acts were dishonest.  He gave no further explanation, but it is believed that he meant it could not be sure that the appellant would not pay for the two items.

34.  Having carefully examined the CCTV footage and photos in the case and having considered the setting and layout of the M&S, I entirely agree with the magistrate that the appellant was not being careless when she left M&S with the articles in question in her hand(s)  without making payment. The appellant’s acts were in fact highly suspicious, which undoubtedly brought suspicion upon herself, and she therefore should not be awarded costs.

Conclusion

35.  I reverse the magistrate’s order which awarded costs to the appellant, and set it aside, i.e., no costs be awarded to the appellant at all.

36.  In view of this decision, whether the appellant should also be awarded the costs of instructing the senior counsel becomes an academic issue, which needs not be dealt with.

37.  In respect of the costs of this appeal, although both parties have made submissions upon the directions of this Court, they are relatively simple.  I will hear the detailed grounds to be advanced by both parties in the event that the respondent makes a formal application for costs.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.