HKSAR v. AU YEUNG HO WAI HOWARD

HCMA 507/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 507 OF 2003

(ON APPEAL FROM KCCC 15904 OF 2002)

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J U D G M E N T

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1. This is an appeal by the 4th Appellant with originally three, now two, others - the 3rd Appellant has abandoned his appeal. The appeal by the 4th Appellant is against a Magistrate's decision not to award costs in his favour. The appeals by the 1st and the 2nd Appellants are against conviction and sentence and have to be adjourned for legal consultation. In order to save costs, the parties agreed that I proceed with the 4th Appellant's appeal. This I have done and here is my judgment.

2. The 4th Appellant was charged with one charge of 'Inhaling a Dangerous Drug'. The evidence against him consisted of police observation of him putting some white powder on the back of his hand and then sniffing it. There was also evidence of swabs taken from his hand and which were subsequently found to contain traces of ketamine. The Magistrate accepted the evidence of the police officers but since he also found the swabs contaminated, he acquitted the 4th Appellant of the charge. In refusing his application for costs, the Magistrate stated that the 4th Appellant had brought suspicion upon himself and misled the prosecution in their assessment of the case.

3. Having heard counsel, I agree that in saying what I have just quoted, the Magistrate must have meant the act of sniffing. I agree with counsel that that act itself is the very act that constituted the offence if what was sniffed was in fact ketamine, and cannot be said to be misleading conduct on the part of the 4th Appellant. If the reverse is true then no acquitted person under these or similar circumstances will ever get costs. Looking at the matter in the round, the prosecution failed because of a problem with its forensic evidence. It had nothing to do with the 4th Appellant.

4. The appeal is allowed. The 4th Appellant will have his costs both for today and the proceedings below, to be taxed if not agreed.