HKSAR v. CHU KAM TIM AND ANOTHER

HCMA934/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.934 OF 1999

(ON APPEAL FROM SPS900019-20/1999)

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J U D G M E N T

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1. This case comprises two appeals. The first appeal by the 1st appellant against the award by the magistrate consequent upon his acquittal of the sum of $5,000 by way of costs. Mr Wong for the appellants argues that costs shall not be punitive but in the words of the general principles relating to costs in criminal cases :

"shall be such sums as appeared to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings including any proceedings preliminary or incidental thereto".

2. The facts here were that the police visited premises that were maintained as a massage establishment. There, they found certain alterations to the premises which were not within the terms of the licence. Prosecutions were mounted in respect of two persons. The 1st appellant was notified after he had been charged, after he had visited solicitors, taken their advice and instructed them concerning his defence and after he had briefed counsel that the prosecution would not continue and that no evidence would be offered upon the date of trial. That is what in fact happened, and on 5 August, no evidence was entered by the prosecution and he was acquitted.

3. The magistrate, in recompense of the costs of solicitors and counsel, awarded the sum of $5,000.

4. Miss Lai argues for the respondent that the magistrate was in a better position to know the complexities of the case and the amount of costs which amounted to a fair compensation for the monies expended by the appellant.

5. It seems to me that the sum of $5,000 where a person has been charged, where the matter comes on for mention in court and where, although an undertaking is given that no evidence will be offered, it is still necessary for the appellant and his representatives, including counsel, to appear upon the hearing date for that to be confirmed by an entering of "no further evidence" and then a subsequent acquittal must justify more costs than the sum of $5,000. It is common knowledge that that sum would not cover, even in the simplest cases, the instructing of a solicitor and the briefing of counsel involving at least two court attendances.

6. I allow the appeal in respect of the 1st appellant and refer the question of costs to the Taxing Master and include in that referral the bills of costs from the solicitors which were produced to the magistrate : they were the bill of costs relating to each of the appellants before me today. Both bills of costs, on the face of them, indicate a great degree of duplication and a level of costing which may appear to be at a considerable level. Both bills of costs should be before the taxing master so that the proper costs, bearing in mind potential duplication, can be assessed.

7. In respect of the second appeal, the matter went to trial and the 2nd appellant, after trial, was acquitted. The learned magistrate gave his order for costs and held that the appellant brought suspicion upon himself and thereby was not entitled to any award of costs.

8. Mr Wong accepts that the law as set out by the learned magistrate is the law that applies :

"It is now common ground that the court has an unfettered discretion in matters relating to costs and such discretion is to be exercised upon or after considering the circumstances peculiar to each case. By now there is an entrenched normal practice that an order would be made in favour of an Appellant for his costs save and except where there existed positive reasons for not making such an order. There are 2 recognised reasons by the courts in relation to a court's discretion not to award costs to a successful Defendant. Firstly, where the Defendant had, by his own conduct, brought suspicion upon himself. Secondly, where there was ample evidence to support a conviction but the defendant was acquitted on a mere technicality."

9. The court prosecutor argued that the appellant's conduct brought suspicion upon himself :

"The appellant claimed to be the person-in-charge and at the material time nobody else there were in charge of the premises. He gave the police the impression that he was the only person who was responsible for the breaches of conditions. The Appellant did not bother to explain to the police as he remained silent, refused to sign on any police documents and stamp the company's seal on any police document."

10. In relation to that conduct, the learned magistrate said this :

"I am convinced that this is a case where the Appellant's conduct and activities, for the reasons as argued by the Court Prosecutor already set out in paragraph 5 hereinabove, had brought upon himself overwhelming suspicion. In the circumstances I have no difficulty in finding that this is a straightforward case for the Court to refuse the cost application by the Appellant."

There is clear authority in the case of HKSAR v. Dove & Anr [1998] 1 HKLRD 179 that where an appellant brings suspicion upon himself in circumstances where an appellant would be expected to bring to the attention of the prosecuting authorities a material fact which indicated that he was not guilty of the offence with which he was charged, costs would not be awarded as he brought suspicion upon himself.

11. Mr Wong argues that that case related to evidence called by the prosecution and none was called in this case. However, he accepts that the claim by the 2nd appellant to have been the person in charge of the premises was one which was capable of various views as to the nature and degree of that responsibility.

12. Miss Lai argues that the 2nd appellant having stated that he was in charge of the premises and held himself out by accompanying the police to view the various changes to the premises of which the police complained, as being in charge of the premises to a degree that he was responsible for those changes in respect of licence conditions. The 2nd appellant, she argues, did nothing to disabuse the police of that responsibility and by doing so brought suspicion upon himself. This is contained in the case for the prosecution as argued by Mr Wong at trial.

13. The learned magistrate was in a position to assess the position of the 2nd appellant at trial and the degree to which he brought suspicion upon himself. He has approached the question of costs in respect of the 2nd appellant in a proper manner; he has set out his reasons and I cannot find any error in them.

14. The appeal in respect of costs by the 2nd appellant is dismissed.