THE QUEEN v. SABNANI GOBINDRAM HARKISHINDAS

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JUDGMENT

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Kempster, JA  :

1. On 23 June 1989 in the District Court Sabnani Gobindram Harkishandas was convicted by HH Judge Wally Yeung, after trial, on four charges of forgery with intent to defraud or deceive contrary to s 71(3)(g) of the Crimes Ordinance (Cap 200). The subject matter of the convictions were purported bank remittance forms, with an ostensible total of US$96,010, put in evidence in civil proceedings in the Hong Kong High Court by way of exhibits to an affirmation made by Mr Harkishandas to resist an application for summary judgment. In his affirmation he falsely claimed that debts owing by the defendant company, of which he was a director, had been discharged in part by payment of such remittances to the plaintiff's correspondent banks in New York.

2. On the same day Mr Harkishandas was sentenced to 18 months imprisonment on each charge, concurrent, suspended for two years. He was also ordered to pay from his bail money HK$50,000 towards the costs of the prosecution pursuant to s 72 of the Criminal Procedure Ordinance (Cap 221). He now asks us to extend the time during which he may seek leave to appeal against the order for costs. The basis for the application to extend time is the delay of the Legal Aid Department in making up its collective mind whether or not to assist him in seeking leave to appeal. Though his application for Legal Aid was not granted until 4 October 1989 his application for leave to appeal against sentence was lodged on 3 August. As already indicated we are disposed to, and do, extend time.

3. The applicant's grounds for setting aside the order made in relation to the costs of the prosecution are that by the conclusion of the trial he was a ruined man, living with his wife in rented property, qualifying in financial terms, then as now, for Legal Aid and suffering in his health. In his Reasons for Sentence, contemporaneously dated 23 June 1989, the judge said "he is financially poor". No further inquiry was made as to the applicant's ability to pay costs or as to the source of his bail deposit.

4. The sum of HK$50,000 had been deposited at Central Magistrates' Court on 18 November 1988. In his "Reasons for Order for Costs" provided ex post facto on 16 August 1969 the judge said that a defendant should not be encouraged to put the Crown to proof as had happened in the course of the instant trial.

5. To quote from the judgment of the English Court of Appeal in R v Maner [1983] 76 CAR 309 and given by O'Connor, LJ at p 312 : -

"It is well established that orders for costs should not be made which are beyond the means of the accused."

6. This necessarily requires some relevant inquiry by the Court. It is also, incidentally, desirable for the Crown to give an estimate of the costs incurred.

7. We have today, pursuant to s 83V(2) of the Criminal Procedure Ordinance, received in evidence an affirmation newly made by the applicant. It states that the bail money was not his own but advanced to him by a friend by way of loan.

8. In failing to make inquiry, as we have already indicated, the judge fell into error and in the light of the evidence now before us it is apparent that the applicant had no means to pay costs. We allow the application, treat this as the hearing of the appeal, allow the appeal and quash the order for costs.