HKSAR v. REHMAN SAFE UR

DCCC 411/2022

[2023] HKDC1077

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2022

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RULING

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1.  D2 was charged with one charge of trafficking in a dangerous drug. He offered to plead guilty to one charge of possession of a dangerous drug on the first day of trial, but was refused by prosecution. After trial, D2 was acquitted of the charge of trafficking in a dangerous drug, but convicted of the charge of possession of a dangerous drug.

2.  Defence now applies for cost for the whole proceedings, in the alternative, for the trial.

3.  In deciding on costs, I have considered the principles laid down in Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531.  In looking at whether defendant brought suspicion upon himself, beside his conduct during the investigation or at trial, court would also look at conduct which formed part of the setting for the charges laid against him. See Ting James Henry v HKSAR (2007) 10 HKCFAR 730.   I have also considered paragraphs 6-11C – 6-13 of Archbold Hong Kong 2023.

4.  The normal rule is that costs follow event.  However, in exercising my discretion, I also need to consider whether defendant’s own conduct brought suspicion upon himself. 

5.  Defence said he did not bring suspicion upon himself, as the entire case was admitted.  Not a single witness was called.  Therefore, the prosecution evidence is not sufficient to prove beyond reasonable doubt that the defendant was trafficking.  However, the test for costs is not whether prosecution can prove their case beyond reasonable doubt.  The test is whether his conduct brought suspicion upon himself.

6.  Regarding this, I have the following observations:

i)   As a new drug user, D2 and D1 bought a total of  7.45 grammes of ketamine.  They were packed in 27 packets that could last for 1-2 months. 

ii)  As a new drug user, buying so much in one go will bring suspicion upon himself that he intended to traffick.

7.  Therefore, I refused D2’s costs application.