LI LAI YU JANE v. HKSAR

HCAL40/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.40 OF 2003

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J U D G M E N T

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1. This is an application by the applicant to judicial review the ruling of a Deputy District Court Judge ("the Deputy Judge") made on 7 February 2003, refusing costs to the applicant subsequent to her acquittal ("the Ruling").

Background

2. The factual background of the applicant's judicial review application is not in dispute.

3. On 27 September 2002, the applicant was charged with one count of conspiracy to defraud a company in connection with the preparations of certain purchase orders.

4. On 4 February 2003, the applicant appeared before the Deputy Judge sitting in the District Court for trial. During the trial, the prosecution sought to produce as evidence two cautioned statements taken from the applicant on 17 and 21 September 1998. These statements form the sole evidence against the applicant. The applicant raised objections to the admissibility of the statements on the ground of involuntariness and unfairness. At the conclusion of the voir dire on 6 February 2003, the Deputy Judge ruled in favour of the defence and did not admit the cautioned statements into evidence. According to Mr Lee for the respondent, the Deputy Judge took the view that the caution was not detailed enough to drive home to the applicant the offence that she was being investigated.

5. On 7 February 2003, the prosecution offered no further evidence against the applicant. The charge against her was dismissed and she was acquitted. Thereupon, the applicant through counsel applied for costs against the prosecution pursuant to section 5 of the Costs in Criminal Cases Ordinance, Cap.492. The Deputy Judge refused the application.

The Deputy Judge's ruling

6. In refusing the costs application, the Deputy Judge referred to the contents of the two cautioned statements given by the applicant and concluded that the applicant had brought suspicion upon herself. The Deputy Judge considered that he was entitled to have regard to the statements notwithstanding that he did not admit them into evidence. He relied on the judgment of Beeson J in HKSAR v. Wong Pak Nin [2001] HKLRD 74. The Deputy Judge's reasons appear in paragraphs 2 and 3 of the transcript, which state :

"2. It must be right that the court may examine the cautioned statement from an entirely different viewpoint once the case is finished. One of the matters to be considered by a court in an application for costs is whether or not the defendant has brought suspicion, in this case, upon herself.

3. In a case such as this, where the only evidence against the defendant is a cautioned statement, then it is only logical that the court look at that statement, not as a trier of fact with a view to guilt or innocence, admissibility or otherwise, but as evidence, unless the court has in reasons stipulated on the voir dire that the contents of the cautioned statement are unreliable or not the words of the defendant. Clearly, in that case, the court should not place any reliance on the cautioned statements."

The application for judicial review

7. On 24 April 2003, the applicant issued these proceedings, seeking leave to judicial review the Ruling of the Deputy Judge. In the Form 86A, the grounds on which relief is sought are that the Deputy Judge erred in failing to exercise his discretion, and that it was unreasonable in all the circumstances for the Deputy Judge to refuse to award costs to the applicant. It was subsequently amended to include a third ground that the Deputy Judge erred in law in having regard to the two cautioned statements after they had been held to be inadmissible.

8. On 20 May 2003 after hearing the applicant ex parte, the applicant was granted leave to judicial review only on the last ground of error of law. The applicant was also granted leave to amend her Notice of Application to include the remedy of mandamus as an alternative to an order of certiorari. On 29 May 2003, the applicant filed the Notice of Motion.

The ground for judicial review

9. Section 5 of the Costs in Criminal Cases Ordinance provides :

"Where after trial in the District Court or the Court of First Instance a defendant is acquitted, the District Court or the Court of First Instance may order that costs be awarded to the defendant."

10. It is not in dispute that a successful defendant or appellant may be refused costs where there are positive reasons against an award of costs. Where a defendant's own conduct has brought suspicion on himself, the court is entitled to refuse to award costs to him : see The Queen v. Kwok Moon Yan & Anor [1989] 2 HKLR 396. It is also common ground that the remedy for a defendant, whose application for costs in the District Court was refused, is by way of judicial review.

11. In the present application, the applicant argues that the cautioned statements on being excluded, do not form part of the evidence, and cannot be used as evidence that the applicant had brought suspicion on herself. The respondent, on the other hand, argues that a distinction has to be drawn between statements that are ruled inadmissible on account of force, threat, inducement or oppression, and those that are excluded on other grounds. In the case of the former, the respondent accepts that the inadmissible cautioned statement cannot be used by the prosecution as evidence in the trial.

12. The issue in this application is therefore a narrow one, namely, whether as a matter of law, the court may, in an application for costs by a defendant, rely on the cautioned statement he gave to the police, but which had been ruled inadmissible.

The law

13. In Cheung Bik Kwong v. Attorney General & Anor [1999] 2 HKC 870, a defendant who was acquitted in the District Court but was refused costs applied to judicial review the Judge's decision to refuse him costs. Similar to the present case, the only evidence against the defendant was his cautioned statement, which the Judge ruled to be involuntary and therefore inadmissible. The Judge refused his costs application for the reason that the defendant had, by the contents of the cautioned statement, brought suspicion on himself. The defendant applied for judicial review, arguing that the Judge erred in law in relying on the inadmissible statement to deny him costs. Counsel for the Attorney General did not oppose the application, and Mayo J (as he then was) quashed the decision of the Judge.

14. In HKSAR v. Wong Pak Nin, the appellant was acquitted in the Magistracy. The only evidence against him was the admissions in his record of interview given under caution, which the Magistrate ruled to be inadmissible. The Magistrate refused to award costs to the appellant on the ground that he had brought suspicion on himself, relying on the contents of the record of interview. The appellant appealed against the refusal. Beeson J allowed the appeal on the basis that the Magistrate should not have relied on the admissions in the records to decide that the appellant brought suspicion on himself, when he had doubts about the way the record was obtained.

15. In the course of her judgment, however, Beeson J referred to the case of Cheung Bik Kwong and commented as follows :

"I do not agree with that holding in its entirety. I do not think it possible to say that on a costs application a magistrate can never take into account, for the purposes of deciding the application, the contents or the provenance of a statement that has been ruled inadmissible. There may well be circumstances where although a statement is ruled out, the evidence relating to its provenance or contents may reveal that the accused brought suspicion on himself. A Magistrate, in certain circumstances, must be able to examine a cautioned statement from one view for the purposes of determining admissibility, but from a different standpoint for the purposes of deciding an application for costs."

The applicant's arguments

16. Mr Mumford SC for the applicant argues that Cheung Bik Kwong is a direct authority, which holds that the contents of an inadmissible statement cannot be used as evidence that the accused brought suspicion upon himself. It is said that it is binding on the Deputy Judge, who should have followed it. It is further submitted that the comments made by Beeson J was made obiter. The Deputy Judge therefore errs in law in not following the case of Cheung Bik Kwong, and in applying Beeson J's obiter comments.

17. For my part, I do not agree that the Deputy Judge necessarily commits an error in not following Cheung Bik Kwong. Although Mayo J indicated in the judgment that he agreed that the ruling of the Judge should be quashed for the reasons submitted, it is to be noted that the application for judicial review was unopposed and the court did not receive arguments to the contrary. It must also be noted that the holding in the head note, which reads : "It was both an irrelevant consideration and error of law to take into account the contents of a statement by a defendant, ruled to be involuntary and therefore inadmissible, as evidence that the defendant brought suspicion upon himself for the purpose of refusing the defendant costs upon acquittal", does not form any part of the short judgment. Further, by reason of he brevity of the judgment, it is not possible to ascertain the underlying facts, and in particular, the basis on which the cautioned statement was ruled to be involuntary. I do not consider the case as lying down the rule that it is not permissible, in all cases, for a judge dealing with costs application to have regard to a cautioned statement that has been ruled inadmissible.

18. Additionally, in HKSAR v. Chau Chiu Wong (unreported) HCMA 91 of 2000, where a successful appellant applied for costs of, inter alia, the trial and the appeal, Nguyen J, referred to Cheung Bik Kwong and the passage in Wong Pak Nin, as quoted above, and stated that he was in agreement with Beeson J's approach. He went on to consider the evidence in the case, including an alleged verbal admission made by the appellant. He concluded that the appellant had by his own conduct brought suspicion on himself and declined to award costs of the trial to the appellant.

19. The position is therefore there are two different views on the point. In my view, the Deputy Judge is at liberty not to follow Cheung Bik Kwong and to apply instead the reasoning in Wong Pak Nin, which has been applied in Chau Chiu Wong.

20. Mr Mumford SC also refers to the cases of R. v. Treacy [1944] 2 All ER 229 and Lam Chi Ming & Ors v. The Queen [1991] 2 AC 212, and argues that once a statement has been ruled inadmissible, nothing more ought to be heard of it, and this is so even if the admission is shown by other evidence to be reliable. The case of Treacy concerns the issue of whether a defendant may be cross-examined on answers he gave in an inadmissible statement. As for the case of Lam Chi Ming, the issue involved is whether part of a confession, which is shown to be reliable by other evidence, may be given in evidence at the trial despite that the admission was obtained by police brutality and was inadmissible. As such, neither of these authorities is concerned with the specific issue of whether inadmissible admission or statement can be relied upon in considering a defendant's costs application.

21. In Tong Cun Lin v. HKSAR [2000] 1 HKLRD 113, a defendant was acquitted after trial in the High Court. His application for costs was refused. He appealed to the Court of Final Appeal. In dismissing the appeal, Litton PJ discussed the governing principles on the exercise of the court's power to award costs and observed as follows (at 117F-J) :

"When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal - the averments constituting the charges having been found by the jury as not amounting to the crimes alleged - it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant's conduct during investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself."

22. Although these observations were made in the context of section 73A of the Criminal Procedure Ordinance (now repealed), they are equally applicable to costs applications made under section 5 of the Costs in Criminal Cases Ordinance, with which this case is concerned. Plainly, the conduct of a defendant under investigation and at trial, and the circumstances under which he came to be acquitted are pertinent considerations in the exercise of the discretion to refuse costs. The conduct of a defendant under investigation is to be reflected by his response and answers given to the investigators, including those contained in cautioned statements. Where the cautioned statement has been ruled inadmissible, it is both relevant and important to consider the reasons leading to the ruling.

23. In this regard, I am in agreement with the views expressed by Beeson and Nguyen JJ that it must be permissible, in some circumstances, for the trial magistrate or judge to have regard to the answers given in a cautioned statement, despite that the statement is ruled to be inadmissible. As submitted by Mr Lee, while it would not be proper to take into account the contents of a cautioned statement that has been excluded by reason of force, inducement, threat or oppression, it should be permissible to refer to a cautioned statement that is excluded on procedural or technical grounds or grounds that do not call into doubt the genesis and reliability of the contents in the statement.

24. In the present case, the Deputy Judge had excluded the applicants' cautioned statements from evidence, not on the basis that they had been extracted by force, inducement, threat or oppression, but by reason of his finding that the caution administered was inadequate to bring home to the applicant the details of the charge she was facing. The transcript on the Ruling on costs shows that the Deputy Judge, in concluding that the cautioned statements amount to strong evidence against the applicant, had also taken into account the applicant's position in the company involved and the fact that she had all the documents ready at hand. Evidently, the Deputy Judge was of the view that the contents in the cautioned statements are the words of the applicant and are reliable. It is on this basis that he regarded the applicant had "by her very forthcoming admissions" attracted the suspicion of the police. In my view, the Deputy Judge does not commit any error of law in so holding, and in ruling against the applicant's costs application. The applicant's ground for judicial review therefore fails.

Conclusion

25. For the reasons indicated above, the applicant's application for judicial review is dismissed. There is no reason for departing from the usual rule of costs follow event. I therefore make an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.