HKSAR v. TAI CHAU

[English Translation – 英譯本]
HCMA 134/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 134 OF 2008

(ON APPEAL FROM KCCC NO. 6742 OF 2007)

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REASONS FOR JUDGMENT

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1. The appellant was charged with one count of “possessing for sale or for any purpose of trade or manufacture any goods to which a false trade description was applied”. She pleaded not guilty and was acquitted by the magistrate after trial.  She applied for a costs order against the prosecution, but the magistrate dismissed the application.   Against this the appellant now appeals.

2. Having heard submissions from both sides, I allowed this appeal and set aside the magistrate’s decision.  I ordered that the appellant be awarded costs of the trial before the magistrate and costs relating to the present appeal (including expenses incurred by the appellant in applying for bail), to be taxed pursuant to Rule 5 of the Costs in Criminal Cases Rules (enacted under the Costs in Criminal Cases Ordinance, Cap. 492 of the Laws of Hong Kong) if not agreed.  I now set out the reasons for my judgment.

Relevant facts

3. The relevant facts of the present case as stated by the magistrate are as follows:

2.         The facts of the case revealed that, following investigations, Customs and Excise officers suspected that some hawker stalls in Tung Choi Street, Mong Kok (commonly known as ‘Ladies’ Street’) were, in contravention of trade description [regulations], selling ornaments marked with 18K GP.  Therefore, they took action on the day in question by dividing up into small teams and conducting searches of the target stalls, including stall no. 643, which were suspected of contravening the regulations.  At the material time, a plainclothes Customs officer posing as customer approached stall no. 643 and enquired of D3, who was very close to the said stall, about the price of the relevant item of goods.  D3 answered that it was $89. The Customs officer immediately revealed his identity and arrested D3.  At trial, D3 claimed that she was in fact an employee of stall no. 641, which was adjacent to stall no. 643; that the person-in-charge of stall no. 643 was one ‘Ming Ying’ and that shortly before the incident, ‘Ming Ying’ had to leave the stall for a while to answer a call of nature and hence asked D3 to look after stall no. 643 for the time being.  When the Customs officer who posed as customer arrived, D3 was then hanging up some goods in her stall with a fork.  The Customs officer pointed at a piece of ornament in stall no. 643 and asked her about the price.  At first she ignored the officer, and it was only when he asked the question again that she responded ‘casually’ by saying ‘$89’.  Right after that, the Customs officer arrested her.  Upon arrest, she gave an explanation to the Customs officer, and the officer also waited at the scene for about 20-odd minutes, but ‘Ming Ying’ did not return and D3 was finally taken back to the Customs office.  D3 indicated that she had nothing to do with stall no. 643 and that she only assisted ‘Ming Ying’ in keeping an eye on the goods to prevent them from being stolen, but she would not help ‘Ming Ying’ sell any of the goods.  At the time of the arrest, a bunch of keys was hanging on D3’s neck, and those keys could only open the moneybox in her stall and not the moneybox in stall no. 643.  After trial, I find the exhibits seized from stall no. 643 did contravene the false trade description [regulations].

The oral reasons for verdict given by the magistrate include the following:

12.       D3 elected to give evidence.  She has no conviction record.  Having considered all the circumstances, including her responses upon arrest and the findings of the Customs officer, I am of the view that the prosecution has not only failed to resolve some material doubts but also failed to prove beyond reasonable doubt that D3 had significant control over the goods in stall no. 643.

Reasons for dismissing the application for costs

4. The magistrate gave the following reasons for dismissing the appellant’s application for costs:

3.         The reason I find D3 not guilty of the offence is that the prosecution has failed to prove beyond reasonable doubt that D3 was an employee of stall no. 643.  I dismiss D3’s application for costs because, under the circumstances at that time, although she would not sell goods on behalf of ‘Ming Ying’, she did not ask the customer to wait for a while but rather gave a reply to him about the price.  All these factors would have led an objective customer into believing that she was the salesperson.  In my judgment, her conduct brought suspicion on herself and would indeed cause the prosecution to verily believe that the case against her was strong.  She should not be awarded costs.

Ground of appeal

5. Mr Chung, Counsel for the appellant, put forward one ground of appeal, namely that:

The magistrate erred in fact [and/or] in law in dismissing the defendant’s application for costs.

In his written submission, Mr Chung set out in detail the relevant facts of the case in order to support his contention.  I do not consider it necessary to repeat in great detail Mr Chung’s submission, which is essentially that on the facts of the present case, the prosecution should not have laid the charge against the appellant in the first place.

Legal principles on costs

6. By virtue of section 3 of the Costs in Criminal Cases Ordinance, Cap. 492 of the Laws of Hong Kong, the magistrate may make a costs order in favour of the defendant where he “dismisses the information or complaint” or “acquits the defendant”.  In other words, whether to award costs to a defendant is a matter of discretion for the magistrate.  Section 5 of the said Ordinance also confers a discretion upon District Judges and judges of the Court of First Instance to award costs to an acquitted defendant.

7. The said Ordinance does not set out the principles as to how the magistrate shall exercise the discretion.  Prior to the enactment of Cap. 492, costs in criminal cases were governed by section 73A of the Criminal Procedure Ordinance, Cap. 221.  The following cases dealt with the proper approach in exercising that discretion:  R v. Ng Yui Kin & Others [1983] HKLR 356 and R v. Kwok Moon Yan & Others [1989] 2 HKLR 396.  The Court of Final Appeal affirmed and elaborated on the relevant principles in HKSAR v. Tong Cun Lin (1999) 2 HKCFAR 531 and, subsequently, re-affirmed those principles in HKSAR v. Hui Yui Sang [2006] 2 HKLRD 738.

8. The general principle is that, unless there are substantive reasons to the contrary, acquitted defendants should, generally speaking, be awarded costs.  Examples of substantive reasons are that the defendant’s own conduct has brought suspicion on himself, and that his conduct has misled the prosecution into thinking that the case against him is stronger than it actually is. 

9. In HKSAR v. Tong Cun Lin, Litton PJ gave elaborated on the question of a defendant’s “general conduct”:

… What then are the governing principles?  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.”  [Emphasis added]

10. The above principle is applicable to the present case.

11. Another general principle is that the appellate court should not lightly interfere with the exercise of discretion by the lower court: see HKSAR v. Hui Yui Sang.

12. Judging from the relevant facts, the appellant was not inside the stall in question – she was an employee of another stall, namely the adjacent stall no. 641.  When the “undercover agent” asked her about the price, she did give a reply; apart from this, however, the appellant had done nothing to indicate that she would sell the goods involved.  Right after she gave a response on the price, and without proceeding to  “purchase” the goods in order to test whether the appellant would sell the goods involved, the “undercover agent” revealed his identity and made the arrest.

13. The version given by the appellant in her cautioned statement is consistent with her testimony in court: on both occasions, she stated it was only on behalf of the salesperson of stall no. 643 that she “casually” responded to a customer’s enquiry about the price.

14. The magistrate held that the prosecution was unable to resolve material doubts and failed to prove beyond reasonable doubt that the appellant had “significant control over the goods in stall no. 643”.

15. Looking at all the circumstances at the scene relating to the presence of the appellant by the side of stall no. 643 and her responses, although her conduct can be described as suspicious, the explanation that she subsequently gave in her cautioned statement cannot be considered unreasonable.  Applying the principle in HKSAR v. Tong Cun Lin,the defendant’s conduct had not misled the prosecution into thinking that the case against her was stronger than it actually was.  The prosecution should not have laid the charge against her at all.

16. The magistrate improperly exercised the discretion by not awarding costs to the appellant.

17. For the above reasons, I have allowed the appeal.

Mr. Paul Ho, Senior Government Counsel, for the HKSAR.

Mr. Raymond Chung of Chung Fong & Co. for the Defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.