THE QUEEN v. LAI SHUN-TAK

                Costs in Magistrates Court - if prosecution were unable to prove an essential element of its case the defendant should be awarded his costs.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 607 of 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal against conviction on a charge of theft. The appellant was charged that on the 5th of May 1985 he stole half a bottle of corn oil, the property of NG Wai-hing.

2. NG Wai-hing who was named in the information was not called to give evidence. The only witness for the Crown was detective constable TSE Wing-som who said that he saw the appellant take the oil from a temple on the hillside at Sau Mau Ping. He apprehended him and asked him why he took the oil and the appellant said that he did not ask anybody's permission, he just wanted to take it home. That was the only evidence for the prosecution. The appellant, in cross-examination, asked why it was alleged he stole from NG Wai-hing, in reply to this the constable said-that she was the person in charge of the temple although she was not present at the time. She was unwilling to come to Court.

3. Crown Counsel conceded "that this evidence of ownership was insufficient and that he could not oppose the appeal. The appeal therefore must be allowed and the conviction quashed. The fine if paid is to be remitted.

4. Miss Toh for the appellant instructed by the Director of Legal Aid applied for the cost of the appeal. She conceded that this was unusual in view of the fact that she was not privately instructed but that the Director of Legal Aid had only limited funds and that if an award of costs was made, this would mean that further funds would be available to him. I think this is not a factor which I should consider. The question of whether the Director of Legal Aid is granted sufficient funds from government revenue is not, I think, a matter which I should be concerned with and I treat this application purely on its merit.

5. The question of costs in criminal cases is by no means easy and the position in Hong Kong differs from that in the United Kingdom. There the position appears to be clear and a successful defendant or appellant is entitled to his costs unless it is shown that his acquittal or successful appeal is a result of either a legal technicality or that by his own actions he has brought the prosecution on himself. That seems to be the position in the High Court of Hong Kong which must follow English practise. In R. v. NG Yui-kin and Others, High Court Case No.292 of 1982, I awarded costs to each of the three accused who had been acquitted on that basis. I notice also that when the Privy Council finally allowed the appeal of the accused who was convicted, KONG Cheuk-kwan, he was allowed all his costs even though there was substantial grounds for thinking he had very much brought the prosecution on himself (P.C.A. 65/1984).

6. In the Magistrate Court in Hong Kong, the position is governed by section 69 of the Magistrates Ordinance. Sub-section (1) provides, inter alia, "and where a Magistrate dismisses the complaint or information he may, if he is satisfied, that the proceedings ought not to have been instituted or pursued against the defendant, order that the complainant or informant shall pay to the defendant such costs not exceeding $5,000 as he may think fit." In this case, it seems to me that as the defendant was charged with theft of property belonging to a named person it was essential that either that person be called to give evidence or there should be some other form of evidence as to ownership. The police constable in his evidence said that while a statement had been taken from NG Wai-hing, she was unwilling to come to Court. That being so it seems to me that the prosecution were never in a position to prove an essential element of this charge as laid. That being so, exercising the discretion which was available to the Magistrate, I am satisfied that the appellant is entitled to the costs of this appeal in the sum of $1,000.