HKSAR v. LOK MA KEUNG

HCMA688/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.688 OF 2002

(ON APPEAL FROM TMCC 1230 OF 2002)

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J U D G M E N T

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1. The appellant, Mr Lok Ma Keung, appeared before a magistrate at Tuen Mun Magistrates' Court, charged with wilful assault causing injury to a child, contrary to section 27(1) of the Offences Against the Person Ordinance, Cap.212. He pleaded not guilty and the prosecution offered no evidence. He was duly acquitted but the magistrate declined to award costs. It is against this refusal to award costs for the defence which Mr Lok now appeals.

2. The facts which were alleged in the case, briefly, concerned the appellant's chastisement of a 10-year-old student. The appellant was a tutor at a tutorial school when his student, it is alleged, disobeyed him by refusing to do a written lesson. It is said that the appellant then struck the boy about 10 times with a cane. The cane was made of three rattan sticks bound together with adhesive tape. It is said that the boy tried to take hold of the appellant's hand and that he thereupon accidentally hit the boy in the face. The boy's mother took him to hospital for treatment and then reported the matter to the police. He was found to have redness on his arms, his chest and his back together with swelling to his head and face.

3. The facts indicated that the appellant admitted what he had done and expressed remorse but explained that the boy's mother had previously said she had no objection to the use of corporal punishment on her son. He has never formally accepted those allegations.

4. To a degree these facts were, according to the transcript, acknowledged by counsel for the appellant, and although counsel's concession as to what his client had done should in no way be taken as an admission of guilt, in my view, it is certainly relevant to costs.

5. The matter was first brought before a court on application that Mr Lok be bound over to keep the peace and to be of good behaviour, but the magistrate who heard that application declined to proceed with it, feeling that the matter was too serious to be dealt with in such a way. The appellant was then charged and brought before another magistrate.

6. The mother of the boy had earlier indicated that she and her son did not wish to take the matter further and, faced with this situation, the prosecution decided to offer no evidence when the case came into court and the magistrate duly dismissed the charge, but declined to award costs.

7. The appellant says he should have had these costs. He says costs should follow the event and that the magistrate was wrong to find that the acquittal was based on a technicality and that the appellant had brought suspicion upon himself.

8. The power to order costs in summary proceedings is based on section 3 of the Costs in Criminal Cases Ordinance, Cap.492 where, at section 3(1)(c), it reads :

"(1) Where-

(c) a magistrate dealing with a summary offence or any offence summarily dismisses the information or complaint or acquits the defendant;

...

the magistrate may order that costs be awarded to the defendant."

subsection (2) deals with the amount to be awarded.

9. The order of costs is at the magistrate's discretion and the exercise of such a discretion was discussed by Litton PJ dealing with earlier legislation in HKSAR v. Tong Cun Lin [2000] 1 HKLRD 113. Both the magistrate in his Statement of Findings and counsel for the respondent in his submissions have referred extensively to this judgment :

"What then are the governing principles? 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 the 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."

The judge later referred to the "wide discretion" of the trial judge who is in the best position to assess the large number of factors relevant to the exercise for that discretion (see the judgment at page 119).

10. In HKSAR v. Li Siu Tong & Others, HCMA547/2000, Hartmann J upheld the decision of a magistrate to refuse to award costs and said the following, at page 2 :

"... there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the Appellants behaved badly but that their conduct brought suspicion upon themselves in respect of their alleged criminal conduct."

and, later :

"While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent a magistrate from considering the appellants' actions directly surrounding the alleged criminal conduct."

With respect, I agree with this assessment.

11. The magistrate was plainly well aware of the principles which govern the exercise of his discretion. He carefully rehearsed them in his Statement of Findings. He then commented :

"... the appellant appeared to accept before me that he did inflict the injuries on the boy. He indicated through counsel that he was relying upon delegated parental authority as his defence. In my judgment, it was beyond any sort of acceptable behaviour that a professional tutor should have beaten a ten-year old boy some ten-odd times with a cane made out of rattan sticks such that he caused redness on the arms, chest and back of the boy. The swelling to the boy's face and head may have been caused by accident, but the blows clearly came about as the result of the boy resisting the attack upon him with the cane. The struggle came about as the result of the initial attack."

This is based on counsel's concession and, as such, is relevant to the question of costs.

12. The magistrate found the appellant's behaviour to be wholly unacceptable despite the mother's earlier general consent to the use of corporal punishment by him. The magistrate found that his behaviour had brought about the prosecution. He was right. The question of whether or not the defendant's acquittal was because of a technicality does not therefore arise. The appeal is dismissed.

13. The costs of this appeal will be borne by the respondent, to be taxed if not agreed.