HKSAR v. WONG SHUK CHUN

[English translation – 英譯本]

CACC 14/2020

[2022] HKCA 335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 14 OF 2020

(ON APPEAL FROM DCCC 600/2018)

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DECISION ON COSTS

Hon Pang JA (giving the Decision on Costs of the Court):

1.  The 1^st Appellant (A1) and her husband (A2) jointly faced a charge of “fraud”. They were convicted after trial and sentenced to imprisonment for 22 months and 25 months respectively. Both of them then appealed against their convictions. After the hearing, this Court dismissed A2’s appeal but allowed A1’s appeal quashing both her conviction and sentence.

Overview of the case

2.  The facts of the present case and the reasons for allowing A1’s appeal can be seen in the judgment handed down by this Court on 19 November 2021. In short, the prosecution alleged that A1, a civil servant, in her application for housing allowance dishonestly made a false declaration that A2 had not been receiving any housing allowance from his employer. Based on the long term marriage between A1 and A2 for over 20 years and the reply received in response to the request made by the Treasury to A1 for documentary proof, the trial judge held that A1 knew of A2’s receipt of his housing allowance. However, this Court found the analysis of the trial judge unsafe, under which there was insufficient evidence to prove A1’s knowledge.

Application for costs

3.  A1 now applies for costs of the trial, the bail application and the appeal.

4.  A1 submitted that according to the judgment of this Court, there was actually not sufficient evidence to prove her knowledge of A2’s conduct. The cautioned statement of A2 could even show that A1 had been deliberately kept in the dark. The fact that A1 elected not to give evidence and made no statement under caution was only an exercise of her right of silence, which did not amount to bringing suspicion on herself.

Respondent’s stance

5.  The Respondent objected to the application for costs of the trial, for the reason that having twice been requested by the Treasury, in 2000 and 2017, to provide documentary confirmation by A2’s employer that A2 did not receive any housing allowance, A1 never explained why such document could not be provided but only indicated by her memo reply that there was difficulty in obtaining the same. She even challenged the Treasury by asking for the basis on which she was requested to produce such document (see exhibits P9 and P51). In the Respondent’s view, A1, being arrogant and uncooperative, had actually brought suspicion on herself.

6.  Taking one step back, the Respondent submitted that even if A1 were to be awarded the costs of the trial, given that the facts and points of law in the present case were not complicated, the main issues in dispute were factual, and the evidence involved was not complex, which could all be dealt with by one counsel, A1 should therefore be allowed the costs of only one of the counsel and that of the solicitors at the trial.

7.  The Respondent also did not object to A1 being awarded the costs of the bail application and the appeal, save that the costs should similarly be confined to only one counsel and the solicitors.

Appellant’s counter-argument

8.  A1 argued against the above submissions of the Respondent, contending that two documents in 2000 (exhibits P9 and P10) both showed that the two sides had other communications in addition to written correspondence. P10 even directly pointed out that A1 had indicated that A2’s employer had refused to provide any documentary proof.

Discussion

9.  In general, unless there are positive reasons, an acquitted defendant should be entitled to the costs. The positive reasons include: the defendant’s own conduct which has brought suspicion on himself, that the defendant has misled the prosecution into thinking that the case against him is stronger than it really is, and that the defendant is acquitted on a technicality, etc (Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, at page 535D-H). The conduct which can be taken into consideration is not limited to the defendant’s conduct during the investigation and at trial, but also include the conduct which forms part of the setting for the charges laid against him (Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, para 16). Therefore, the communication between A1 and the Treasury regarding provision of documents could also be taken into account.

10.  This Court has referred to exhibits P9 and P10 at para 26 in our judgment. The relevant part shows that A1 has correctly countered the Respondent’s submissions:

“… The first paragraph in P9 showed that before the two parties commenced their written communication, [A1] had talked over the phone with a staff of the Treasury. After receiving P9, the same staff of the Treasury expressed in the last paragraph at P10: ‘You advised that your spouse’s employer refused to provide you and your spouse with the requisite documentary evidence.’ …”

11.  However, the above explanation in relation to the refusal of A2’s employer to provide the proof was simply inconsistent with the facts. The employer not only did not refuse, but in fact issued a letter confirming the payment to A2 of a monthly sum as housing allowance without usage restriction (exhibit P106). The fact that A1 applied for the government housing allowance while A2 was enjoying private housing allowance, coupled with the explanation recorded in P10 which is inconsistent with the facts, obviously aroused suspicion.

12.  Although A1 might have been misled by A2 and hence applied for housing allowance and gave explanation which is inconsistent with the facts, it does not mean that such conduct did not amount to her bringing suspicion on herself. As it was said in HKSAR v Rahman Md Sheikh Mojibur [2020] HKCA 53, at para 26:

“ … Whether or not the defendant brings suspicion on himself and/or results in the prosecution being misled does not logically depend on the defendant’s state of mind.”

13.  Furthermore, A1 has given no explanation on the content of P10 and the charge before and during the trial. She did not explain, perhaps because she might not wish to make any accusations against her husband; however, this is not a good reason for her to be awarded the costs when she has brought suspicion on herself. As in Rahman Md Sheikh Mojibur, at para 26:

“… we should deal with Mr Chan’s argument that there may have been a good reason for the applicant not to disclose his mobile telephone business dealings ... The notion that a defendant may properly make a claim for reimbursement from public funds despite not disclosing that he had been cheating the Inland Revenue Department does not sound a very equitable one, even in a criminal context where the scales are necessarily tilted in favour of the defence …”

14.  We agree that A1 has brought suspicion on herself and should not be awarded the costs of the trial.

15.  The Respondent does not object to A1 being awarded the costs of the bail application and the appeal, save that the counsel’s fees should be confined to that of only one counsel. This appeal involves whether, from the many years of marriage of the two appellants and the content of A1’s memo reply to the Treasury regarding the provision of documents, it could be inferred that A1 had knowledge of her husband’s receipt of housing allowance. The disputes in the case are not particularly easy to deal with, and this Court has eventually found the trial judge’s analysis unsafe. Therefore, it is not unreasonable for A1 to have engaged two counsel, including one senior counsel, to deal with the appeal.

Decision

16.  This Court rejects A1’s application for costs of the trial, but orders that she be entitled to the costs of the bail application and of the appeal, including the fees of two counsel, with such costs to be taxed by a master if not agreed.