HKSAR v. CHIU MAN TING

HCMA 172/2015

MAGISTRACY APPEAL NO 172 OF 2015

(ON APPEAL FROM KCCC 700007 OF 2014)

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REASONS FOR JUDGMENT

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Background

1.  The Appellant Chiu Man Ting was acquitted of one charge of trafficking in dangerous drugs before Magistrate Ronald Cheung Esq. The Magistrate refused to award her the costs of the proceedings whereby she now appeals against the order. 

2.  I dismissed the appeal at the hearing, and I now give my reasons.       

The Facts

3.  The Defendant was found in possession of 0.37 kilogram of Ketamine. She gave evidence that on the day in question, her schoolmate Yeung called her to help collect something from a man.  Later a man telephoned the Appellant and asked her to go to Shek Lei.    Upon arrival, the man called her and asked her to travel to a shopping mall nearby, and to collect a telephone and some money at the staircase near a restaurant.    The Appellant found a telephone and $300 .  Upon the man’s instruction, the Appellant took a taxi to Kowloon Tong.  She called the man and was  given further instruction to go to Fanling.   Upon arrival, the man told her to go to a nearby park to pick up a carrier bag.  The Appellant found a carrier bag which contained a gold and black bag.  The Appellant threw away the carry bag and placed the items in her own bag.  The man gave further instruction over the phone and the Appellant travelled to various MTR stations.  The Appellant finally arrived at Kowloon Tong Station to wait for the man, whereby she was apprehended by the police.

4.  The Appellant had given a cautioned statement to the police, but it was not admitted by the Magistrate as there was doubt on the credibility of the officer who took it. 

The Magistrate’s Reasons on costs

5.  The Magistrate acquitted the Appellant because he was not satisfied beyond the reasonable doubt of the charge.  Upon the oral verdict, Senior Counsel for the Appellant applied for costs.  The Magistrate refused the application because the Appellant had brought suspicion upon herself.

6.  In his oral reasons on the 26 February 2015, the Magistrate said that he was sure that the Appellant was in physical possession of a large quantity of dangerous drugs.  In dealing with the question of costs, the civil standard of proof of balance of probabilities would apply.  He said to invoke the presumption of knowledge under s. 47 of the Dangerous Drugs Ordinance (Cap. 134) on the civil standard of probabilities would not be contrary to the “not guilty” verdict on the criminal charge.  Hence, he found that the Appellant probably knew the items were dangerous drugs.  The Magistrate also mentioned that the Appellant gave evidence about her school friend Kathy, which had some bearing on her acquittal, for the first time only when she gave evidence.

7.  On the 10 March 2015, the Defence made another application for costs before the Magistrate, inter alia, asking costs for certain items at the interlocutory stage of the proceedings. 

8.  The Magistrate allowed costs to the Defence on the late discovery of some investigation reports and on the first PTR.  In the Brief Reasons for Costs dated 10 March 2015, the Magistrate said at para. 19:

“The reasons for me to hold that the Defendant had brought suspicion on herself are obvious. I would propose not to set them out in full in these brief reasons. It would suffice to observe that I was very close to being sure that the Defendant in fact knew that she was carrying dangerous drugs, and that I was sure that the Defendant had in her physical possession a large quantity of dangerous drugs when she was stopped by the police. I have not taken into account the contents of the Defendant’s confession. It is incorrect to do so according to Li Lai Yu Jane. I had duly considered Hui Yui Sang on which the Defendant relied upon in her application for costs. The facts of the present case are obviously distinguishable from the facts in Hui Yui Sang.”

9.  In the Brief Reasons, the Magistrate also corrected himself that the late disclosure of the friend Kathy in the Appellant’s evidence was not relevant to the determination of costs. 

10.  Upon filing the appeal against the costs order by the Appellant, the Magistrate further handed down the Reasons for Costs dated 24 March 2015.  In para. VI of the Reasons, the Magistrate repeated what he said in para. 19 of his Brief Reasons quoted above.    

Grounds of Appeal

11.  The perfected grounds of appeal against the refusal of costs can be summarized as follows:

(1) (a) The Magistrate in saying that he was very sure to being sure of the Appellant’s guilty knowledge was indirectly punishing the Appellant by taking a view of the facts palpably different from that taken by himself and reflected in the not guilty verdict (Tong Cun Lin v HKSAR, FACC 1/1999);

(b) The Magistrate treated the Defendant as if she had been convicted and formed a view of the facts going against the acquittal (Qamar Sheraz v HKSAR FACC 5/2007).

(2) The suspicious circumstances surrounding the activities of the Appellant could not amount to a positive reason for denying costs to the Appellant (HKSAR v Tsoi Chung Fuk HCCC 304/2014).

Relevant Principles

12.  Under s. 47 of the Dangerous Drugs Ordinance:

“(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.”

13.  The relevant law on the award of costs to a defendant upon an acquittal is set out in Tong Cun Lin v HKSAR, FACC 1/1999:

“… 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 non-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

14.  Mr Wong, for the Appellant, submitted that the Magistrate in either saying that he was “very close to be sure” that the Appellant knew what she was carrying were dangerous drugs, or to invoke the presumption of knowledge under s. 47 of the Dangerous Drugs Ordinance on the civil standard of the balance of probabilities, erred in going directly against the verdict of acquittal.

15.  Miss Parwani, for the Respondent, did not seek to uphold the Magistrate’s decision on costs on his reasons but on other grounds.

16.  Miss Parwani sought to use the cautioned statement ruled inadmissible by the Magistrate to show knowledge.  She relied on the judgment of Beeson J in HHSAR v Wong Pak Nin [2000] 1 HKLRD 74 that it was not the case that on a costs application a magistrate could never take into account, for the purpose of deciding the application, the contents or provenance of a statement that had been ruled inadmissible.

17.  In 香港特別行政區 v 陳卓男 (Chan Cheuk Nam) HCMA 504/2013, I refer to the judgment of Chu J (as she then was) in Li Lai Yu Jane v HKSAR HCAL 40/2003, and said that in deciding whether the contents of a cautioned statement ruled inadmissible could be used in the determination of costs, the reasons why the statement was ruled out was important.  If the statement were ruled out due to the use of violence, inducement, threats or oppressions, then it was not proper to refer to the statement.  But if the statement were ruled out due to procedural or technical reasons without affecting the integrity of the source or the credibility, then it could be used.

18.  Since the Appellant’s cautioned statement was ruled inadmissible because the Magistrate had doubt as to the credibility of the officer, I consider it is not proper to refer to it in the determination of costs.  In any case, the Magistrate himself did not refer to it.

19.  Miss Parwani submitted that the Appellant’s conduct in the case as referred to in paragraph 3 above had brought grave suspicions upon herself.  Mr Wong referred to Tsoi Chung Fuk and submitted that such conduct could not be used.

20.  In Tsoi Chung Fuk, the defendant did not give evidence and the suspicious circumstances of the case came from the prosecution evidence, where eventually the jury was not able to rely on it. The suspicious circumstances in this case came from the Appellant’s own evidence.  Hence, Tsoi Chung Fuk is distinguishable.

21.  In the circumstances, I find that the Appellant’s conduct has brought suspicion upon herself and the appeal should be dismissed.