HKSAR v. JAHANGIR ADIL AND ANOTHER

DCCC 421/2025

[2026] HKDC 782

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 421 OF 2025

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Ruling on Application for Costs by D1 only

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I.   Background

1.  D1 (re Charges 1 and 2)  and D2 (re Charges 3 and 4)  were each charged with one count of homosexual buggery with a man under the age of 16 and that of gross indecency with a man under the age of 16 respectively. All charges involved the same boy X who was aged 13 at the time of the offence. X was born in May 2009.

II.   Procedural history

2.  D1 and D2 were arrested in October 2024. D1 was not represented and D2 was represented in their first appearance in District Court on 1 April 2025. On 10 June 2025, D1 was legally aided and represented by Mr Percy who was instructed by Messrs John M Pickavant & Co as assigned by Director of Legal Aid. On 6 Aug 2025, D2 indicated his guilty plea to Charge 3 with Charge 4 be left on court file. D1’s trial and D2’s plea and sentence were fixed for 20 April 2026.

3.  Shortly before the trial of D1 commenced, the Prosecution took a statement from Boy X (now aged nearly 17)  on 17 March 2026. Boy X, in the presence of his guardian, expressed his intention not to pursue the case further due to his anxiety disorder and depressive state. Consequently, the Prosecution informed the parties on 13 April 2026 that the Prosecution would withdraw all charges against both D1 and D2 on 20 April 2026.

4.  On 20 April 2026, upon the request of this Court, the Prosecution was asked to re-approach Boy X with professional support to ascertain his position as one of the Prosecution Witnesses. The case was adjourned to 23 April 2026.

5.  On 23 April 2026, the Prosecution confirmed that Boy X would not testify in court and maintained that, instead of withdrawing the charges outrightly, the defendants should enter their plea and then the Prosecution would offer no evidence against them. That would be the case even though D2 had indicated his guilty plea in August last year. Naturally, with the new information disclosed by the Prosecution on 13 April, D2 changed his plea from one of guilty to not guilty. This Court has mentioned that theoretically the change of stance of Boy X would not affect the plea of D2 as he had admitted the Summary of Facts prepared by the Prosecution.

6.  Both defendants pleaded not guilty to the charges and as such, both defendants were acquitted of their charges.

7.  In light of the sudden change of circumstances which happened just a few weeks before the trial commenced, this Court asked the Prosecution to conduct further investigation to see if any one, including the family members of Boy X, is suspected of committing the offence of perverting the course of public justice.

8.  D1 was legally aided, supposedly, since 10 June 2025. Now, Counsel for D1 applied for costs relating to D1’s private representation before he was granted legal aid. The amount was about HK $45,000 to be taxed if not agreed. D2 did not apply for any costs.

III.   Brief Facts relating to D1 only

9.  Boy X (a local Chinese)  was born in May 2009. In Aug 2024, during a dispute with his mother (PW2 Y), X said he is a homosexual and that he had buggery and oral sex with other males. X disclosed that he had his first experience of buggery between April and May 2022 with a Pakistani male, whom he got acquainted through a mobile Apps ‘Grindr’, which is a male homosexual social application. X said he had 6 more sexual encounters with other males through Grindr.

10.  In the video-recorded interviews which was admitted under s 79C of the Criminal Procedure Ordinance Cap 221, X stated, inter alia, that: -

(1)  X recounted 7 sexual encounters with males through Grindr.

(2)  X met D1 through Grindr. X described D1 as an Indian and D1 was a security guard. They went to a construction side. D1 performed protected buggery upon X. It was X’s first experience and he felt immense pain.

(3)  D1 ejaculated after buggery by masturbating himself and with X. D1 also masturbated X. X also performed oral sex upon D1. D1 mentioned that he wished to have underage boys for sexual activities. After this encounter, D1 gave money to X to take a taxi back home.

(4)  X stated that the incident happened around his birthday in 2022 and at that time he was in Form 1 and aged 13.

11.  Subsequently, D1 was arrested and he denied the offence under caution. X was able to positively identify D1 in an identification parade. Employment records of D1 showed that he was employed as a security guard in a construction site in To Kwa Wan.

IV.   Grounds of costs application by D1

12.  Mr Percy mentioned that the costs application was about HK $45,000. D1 was acquitted and the costs should follow the event. Defence counsel submitted that there was no admission by D1 under caution. There was no evidence of any meeting through Grindr between X and D1. The only evidence was the formal identification.

13.  Defence counsel also stated that the ID parade in charge, Acting CIP Li, did mention that X was emotionally unstable and the Prosecution should not rely on X as the principal witness unless there was other strong supporting evidence.

V.   Considerations

14.  Under the Costs in Criminal Cases Ordinance Cap 492, the court can award costs to the defendant if he was not tried for or acquitted of the offence. It is well established that if an accused is acquitted, he should normally be awarded his costs. If, however, positive reasons exist for making a different order, costs may be withheld: R v Kwok Moon Yan and another [1989] 2 HKLR 396. Positive reasons include the situations where the accused’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. An accused’s exercise of his right of silence is not to be treated as bringing suspicion upon himself.

15.  The award of costs is discretionary, and that discretion has to be exercised judicially. It is also legitimate for the trial judge to consider the manner in which an accused behaved during the investigation stage.

16.  In this case, Boy X was classified as a vulnerable witness. Hence, X’s video-recorded evidence is admissible under s 79C of Criminal Procedure Ordinance, even though X did not testify in court. On top of that, X positively identified D1 in a formal identification parade. In my view, whether X was emotionally unstable and whether X could come up to proof at trial should not be the only test for awarding costs to the defendant upon his acquittal.

17.  Police investigation and the employment record revealed that D1 was a security guard at a construction site in To Kwa Wan at the material time.

18.  At this stage, the only reason that D1 was acquitted without a trial is because X refused to come to court to be cross-examined by defence counsel. X’s evidence-in-chief did exist and was admitted under s.79C. D1 has the right of silence, and there was no duty on D1 to disclose his defence. That said, it also means that the conduct of D1 should be taken into account when costs application was considered.

19.  I have no doubt that the behaviour of D1 during the investigation did bring suspicion on him and, having done that, he also misled the Prosecution into thinking the case against him stronger.

VI.   Ruling

20.  Taking all factors into consideration, I reject the application and refuse to award costs to D1.