HKSAR v. TSANG CHUN CHIU WILLIAM

HCMA403/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.403 OF 2002

(ON APPEAL FROM STCC 1876 OF 2001)

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J U D G M E N T

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1. This is an appeal against the magistrate's decision to refuse the appellant his costs after acquitting him of an offence of indecent assault after trial. The appellant was charged with indecently assaulting his domestic helper (PW1) during an occasion when he had been with her alone in his flat and was teaching her how to use a computer to send and receive e-mails.

2. Because the alleged assault had commenced immediately following the provable last use of the computer, the prosecution was able to say that the assault must have occurred between 2 p.m. and 2:30 p.m. on the charged date. According to the evidence of PW1, the assault was serious, continuous and over an extended period of time, so as to substantially occur within that time period.

3. In the course of conducting his defence at trial, the appellant, who was legally represented by experienced counsel, adduced evidence which was accepted by the magistrate that at 2:06 p.m. on the charged date, he had telephoned a friend with his mobile phone and spoken to him for one minute. That phone call was evidenced by a monthly statement from the appellant's mobile telephone company.

4. Further, the appellant could show that he used his home telephone between 2:11 p.m. and 2:19 p.m. to pay three credit card bills. This was proven by uncontested evidence apparently from an officer of the appellant's bank where he operated a telephone payment service.

5. Finally, the magistrate accepted also that the appellant had used his home phone to telephone his wife's mobile telephone twice and for several minutes each time at 2:20 p.m. and 2:23 p.m.

6. The magistrate acquitted the appellant of the charged offence of indecently assaulting PW1 primarily on the basis of that evidence. In this regard, the magistrate said in his Statement of Findings :

"6. The Defence case was that the Defendant could not at the same time indecently assaulting PW1 and at the same time making phone call to his friend, making payments by phone payment system and having telephone conversations with his wife. The Defendant denied having indecently assaulted PW1 as alleged or at all.

7. The Defendant was acquitted mainly because of the aforesaid evidence. ..."

But the magistrate then, after accepting that costs should generally follow the event, refused to award the appellant the costs of his trial. The reason which formed the basis of that refusal by the magistrate was that the appellant had not brought to the prosecuting authorities' attention that part of his defence relating to the telephone calls he had made between 2 p.m. and 2:30 p.m. on the charged date. The magistrate said in this regard :

"12. If the Defence had bothered to give explanations to the police or prosecution, this case might not be proceeded with. The failure to do so caused suspicion to remain pointed at the Defendant. The prosecution was thus led into thinking that the case against the Defendant was stronger than it was."

7. In concluding that that was an appropriate factor for him to take into account, the magistrate relied upon R. v. Kwok Moon Yan [1989] 2 HKLR 396 where the Court of Appeal said :

"... We entirely accept that the principle that no man should become his own betrayer must remain inviolate. But we do not think this to mean that, if an appellant had a good and valid explanation which he neglected to bring forward at an early and appropriate moment this should not be a factor in considering his contribution to the prosecution bring the charge in the first place ..."

8. In the normal course of events, an award of costs or a refusal to award costs, by a magistrate will not be interfered with. That is because a trial magistrate has a wide discretion regarding costs and is in the best position to assess the factors relevant to any decision relating to an application for costs, but that discretion must be exercised judicially.

9. In Tong Cun Lin v. HKSAR [2000] 1 HKLRD 113, at 119, Litton PJ said :

"... It is only where it can be shown that the Judge has clearly gone outside the ambit of his powers - such as, for example, taking into account a factor which plainly is not relevant to the exercise of those powers - that an appellate court's function becomes engaged. ..."

10. In the present case, the factor the magistrate took into account in arriving at her decision not to award costs to the appellant was that if he had revealed his case concerning the phone calls he had made at the time of the alleged defence, it may well have been that he would not have been prosecuted. Whether or not the magistrate was right to assume the appellant would not have been prosecuted in those circumstances, it seems to me that, reduced to its essentials, the magistrate was saying that the appellant had a good defence to the charge and should have revealed it prior to trial. By not revealing that defence prior to trial, the magistrate concluded that the appellant had brought suspicion upon himself or misled the prosecuting authorities into believing the case against him was stronger than it really was.

11. I think the magistrate was wrong to arrive at that conclusion. In my judgment, the mere fact that a defendant in a criminal trial does not reveal his defence to the prosecuting authorities prior to trial should not disentitle him to his costs if he is subsequently acquitted on the merits of that defence. In saying that, I am dealing only with a defence advanced on the evidential merits of the case. It may well be that a defence advanced on a non-evidential basis, such as a challenge to jurisdiction or a failure by the prosecution to comply with some mandatory requirement in bringing the prosecution, may result in an acquittal of a defendant at the end of a case in circumstances where a court would then be entitled to refuse costs.

12. Additionally, it may well be that on occasion a successful defence on the merits will still not entitle a defendant to costs even in circumstances where the defendant has simply relied on his rights throughout the case. It may be, in that regard, for example, that there is so obvious an explanation for the prosecution case, which is known only to the defendant, that for him to say or do nothing amounts effectively to him deliberately allowing the prosecution to go off on a wild goose chase, where revealing his defence would, at no risk to his own rights or interests, prevent that from happening. But in those circumstances, the defendant's inaction could fairly be regarded as being for reasons other than the reasonable conduct of his case.

13. It seems to me that where a defendant is acquitted on the evidential merits of his case, then in the normal course, he is entitled to his costs if he has conducted his case reasonably and in accordance with his legal entitlements. The fact that the defendant did not reveal his defence until trial does not seem to me to be a course of conduct which could be described in any way, by itself, as that of the defendant having brought suspicion upon himself or of misleading the prosecution into thinking their case was stronger than it was.

14. In other words, it seems to me to be difficult to describe a defendant who merely has not revealed his defence prior to trial, as unreasonably having brought suspicion upon himself or as having misled the prosecution in any way into thinking their case was stronger than it really was. A defendant is generally entitled not to reveal his case. He is entitled to remain silent under caution. It seems to me that to bring suspicion upon himself or to mislead the prosecution in the way required so as to disentitle himself from costs, a defendant would normally have to be shown to have done some positive thing such as lie or prevaricate to the police, or obstruct or mislead their investigation in some active way.

15. Merely doing nothing by remaining silent as to an evidential defence the defendant proposes to mount at the end of the day seems me to reflect nothing more than a defendant, no doubt often upon the advice of his legal representatives, acting within the proper parameters of the reasonable conduct of his defence and in accordance with his legal rights.

16. I might add that if legal representatives in taking instructions from a defendant, as to his defence on the merits of a case, were also required to balance how much of that defence to reveal to the prosecutors, and when, so as to avoid their client being disentitled from costs at the end of the day, then their task would become unreasonably difficult.

17. Accordingly, in this case the appeal is allowed. The appellant is awarded his costs in the court below, to be taxed if not agreed. The appellant is not represented in this appeal, and I make no order as to costs of the appeal.