PINDER SINGH v. SECRETARY FOR JUSTICE

HCAL 1261/2026

[2026] HKCFI 4067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1261 OF 2026

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J U D G M E N T

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A. Introduction

1.  The Applicant, an Indian Form 8 holder on recognizance, was in the front passenger seat of a Lantau taxi when it was stopped at a police roadblock.  In the rear of the taxi were three men – two Indian, and one Vietnamese – who were discovered to be unauthorised entrants to Hong Kong.

2.  The Applicant was later charged with one count of ‘assisting the passage within Hong Kong of unauthorised entrants’, contrary to section 37D(1)(a) of the Immigration Ordinance Cap 115 (“IO”).  He was later acquitted after trial, at which he was represented by Mr Azan Marwah and Mr Nicklaus Pannu-Yuon of Counsel.

3.  The basis of acquittal was on the statutory defence under section 37D(2) of the IO that the Applicant had proved that “he did not know, had no reason to suspect and could not with reasonable diligence have discovered” that the persons were unauthorised entrants.

4.  Notwithstanding the acquittal, the Judge denied the Applicant his costs (“Ruling on Costs”), on the basis that he had brought suspicion upon himself.  In the Ruling on Costs, the Judge also indicated that she would in any event have refused the application for a certificate for two Counsel.

5.  In these judicial review proceedings, the Applicant seeks an order quashing the Judge’s Ruling on Costs, and an order to remit the case back to the District Court for reconsideration.

6.  I gave directions to bring the matter to a rolled-up hearing on 22 September 2026.  At that hearing, the Applicant continued to be represented by Mr Marwah and Mr Pannu-Yuon.  The Putative Respondent, Department of Justice, was represented by Ms Crystal Chan, Senior Public Prosecutor and Ms Moonar Tsoi, Public Prosecutor.

7.  At the end of the hearing, I reserved my decision to be handed down later.

8.  This is my Judgment.

B.  Background

9.  The Applicant is an Indian national, and a Punjabi language speaker.  He came to Hong Kong on 31 August 2023, and shortly thereafter surrendered himself to the Director of Immigration, seeking non-refoulement protection.  He was released on recognizance pending resolution of his non-refoulement claim.  He has a clear criminal record.

10.  On the morning of 6 November 2023, the Applicant was travelling in a taxi, which became the target of a police roadblock.  At the time that it was stopped, the taxi contained a female driver, the Applicant sitting in the front passenger seat, and three men sitting in the rear passenger seats.  As it turned out, those three men were unauthorised entrants to Hong Kong.

11.  The Applicant was arrested on suspicion of the offence.  Under caution, and through an interpreter, he explained in an interview which was recorded (“ROI”) what had happened.  The Applicant was on Lantau.  He intended to return to his home in Mong Kok, and booked a taxi via telephone WhatsApp messaging.  Whilst he was waiting for the taxi, he was approached by three men.  They told him that they could not find any taxi and asked if he could help to give them a ride.  The Applicant did not make any further enquiries of them, including as to their immigration status, and he did not ask them for any money.  But instead he permitted them to join him on the journey.  When the taxi arrived, the three men attempted to speak to the taxi driver, but were unable to communicate with her because of language difficulties.  The Applicant and the three men started the journey together, with the Applicant sitting in the front passenger seat and the others in the rear.  When stopped by the police, the Applicant cooperated with the police and voluntarily unlocked his mobile phone to show the messaging of the request for a taxi.

12.  It is fair to say that the Applicant’s contemporaneous statements in the ROI and messages on his phone were consistent with the case subsequently run at trial, namely that he had called a taxi via WhatsApp from Lantau to Mong Kok and had no knowledge of the immigration status of the other passengers.  The voluntariness and the accuracy of the ROI was not challenged.

C.  Trial, Verdict and Ruling on Costs

13.  The trial of the criminal charge against the Applicant took place on 12 and 13 January, and 5 February 2026 before Deputy District Judge KK Leung.  The central issue at the trial (material for present purposes) was whether the statutory defence raised by the Applicant could be made out.  As already stated, the statutory defence was found in section 37D(2), which materially provided as follows:

(2)  No person shall be convicted of an offence under subsection (1) if he proves that he did not know, had no reason to suspect and could not with reasonable diligence have discovered—

(a)  that the person whose carriage on a conveyance or whose passage is the subject of the charge, was an unauthorized entrant

14.  It was common ground between the parties at trial that the statutory defence falls within the fourth alternative of Kulemesin v HKSAR (2013) 16 HKCFAR 195 – as to which, see further, below.

15.  After the prosecution case closed, a submission of no case to answer – argued mainly on the point as to whether the prosecution had established that the three male passengers were unauthorised entrants – was refused.  Thereafter, the Applicant called no evidence, but relied on the matters set out in his police ROI.

16.  The Verdict – [2026] HKDC 514 – was delivered on 19 March 2026, and the Applicant was acquitted by the Judge.  For present purposes it is only necessary to quote the Judge’s conclusion which is to be found in §62 of the Verdict:

The circumstances and the factual framework [which the Judge had just rehearsed] indeed support D’s case that he did not know and has [sic] no reason to suspect the three males were unauthorised entrants.  D was approached by three males for help to give them a ride, if D’s case is true, it is considered that D could not with reasonable diligence have discovered the males were unlawful entrants as he had no cause to discover the status of the males and he had no duty to do so under such circumstances.

17.  The circumstances and factual framework which the Judge had just rehearsed – and which she thought supported the Applicant’s case on the statutory defence – included that (1) the Applicant’s ROI represented his immediate response to put forward his explanation, (2) it was not factually implausible to call a Lantau taxi to leave Lantau Island to go to Mongkok, (3) it was not shown whether the Applicant had any prior communication or connection with the three males, (4) the prosecution did not explore at trial whether anything in the passengers’ appearance would have caused the Applicant to regard them as unauthorised entrants, (5) it was unknown where the three males had approached the Applicant, (6) the case occurred around 9am, rather than in the small hours, (7) two of the passengers spoke the same language (Punjabi) as the Applicant, and (8) the Applicant did not seek any special transport arrangements to facilitate concealment.

18.  It can, however, be noted that in §64 of the Verdict the Judge recorded:

Having regard to all the above, I do not consider the prosecution’s allegation against D to be the only possible conclusion of the case.  I could only conclude that D’s act was suspicious.

19.  The Judge’s Ruling on Costs – [2026] HKDC 862 – was given on 8 May 2026.  She noted that the Applicant applied for his costs on the submission that the prosecution had failed to show any positive reasons for which the Applicant as defendant should have his costs denied.

20.  The Judge noted at §13 of the Ruling on Costs that she had found in the Verdict that the prosecution showed insufficient evidence to find that the defendant knew the passengers in the taxi were unauthorised entrants.  The allegation of the prosecution therefore could not be the only possible conclusion of the case, meaning the prosecution could not prove the case beyond reasonable doubt.  She also noted that she had nevertheless considered the act of the defendant as suspicious.

21.  The Judge specifically referenced at §17 a part of ROI of the Applicant by the police, which was as follows:

Q6:  Where did you get in the taxi?  Where was your destination?

A6:  I don’t remember.  I was going to Mongkok.

Q7:  Do you know other three males in the same taxi?

A7:  No, I just met them on the road where I was waiting for the taxi and they came to me and said they could not find a taxi and asked if I help them to get them a ride.  I don’t know whether they are legal or illegal in Hong Kong.  Neither they have paid me for this ride nor I took any money from them for the ride.

22.  On the basis of that, the Judge noted at §18 that:

Though it was found that the defendant at the material time might not have the duty to ask for the identities of the three males, indeed it came to his mind of whether the three males remained in Hong Kong legally or not.  He should have aware [sic] of the danger of providing assistance to the three unknown males whom their status he came to query in his mind.  It should also be noted that the defendant is a form 8 recognizance holder in Hong Kong.  The importance of the right of remaining was not unknown to him.

23.  At §19, the Judge accepted the prosecution submission that, given the Applicant was a Form 8 recognizance holder and was not permitted to work in Hong Kong, there was no indication that he made any inquiry about the three males’ destination and settlement of the fair.  She stated that it should also be noted that two of the males spoke the same language as the Applicant, i.e. Punjabi.

24.  The Judge’s conclusion was expressed at §20, as follows:

Having considered all the circumstances, I found the defendant had brought suspicious [sic] upon himself.  I exercise my discretion to refuse the defence application for costs.

25.  As summarised by Ms Chan, the Judge exercised her discretion to refuse costs on the basis that the Applicant had brought suspicion upon himself taking into account (1) the Applicant’s own words in the ROI, (2) his knowledge of the importance of the right of remaining in Hong Kong, and (3) his conduct which formed part of the setting for the charge.

26.  The Judge nevertheless went on to consider the question of the application made for a certificate for two Counsel.  That was made on the basis that Mr Marwah had originally been instructed in part due to his familiarity with the Punjabi language, but that additional junior Counsel was urgently instructed due to his fluency in Chinese, necessary to assist with the very late disclosure of untranslated material.

27.  The Judge acknowledged that Counsel’s multilingual proficiency proved advantageous in the proceedings and professional competence.  But she held that, should the defence have encountered difficulties due to urgent and unforeseen matters, the Court would have allowed time for their resolution.  She acknowledged that the defendant would face a sentence of imprisonment upon conviction.  But she considered the facts and issues as not complex, the cross-examination not lengthy, and the documentary exhibits limited in number.

28.  On that basis, at §24, the Judge concluded that, having considered the nature and complexity of the case, the award of a certificate for two Counsel was not appropriate.

D.  Applicable Principles

29.  In Cheng Yiu Tong v HKSAR [2026] HKCFI 2298, I recently considered the principles applicable to the question of costs arising after acquittal on a criminal charge.  Those principles are well-settled and, insofar as and with additions necessary for present purposes, I can rehearse them here.

30.  Section 5 of the Costs in Criminal Cases Ordinance Cap 492 provides that where, after trial, a defendant is acquitted, the Court may order that costs be awarded to the defendant.  Further, under section 15, costs are of a compensatory nature and not punitive, meaning the order for costs should be of sums which appear reasonably sufficient to compensate the party to proceedings for any expenses properly incurred by him in the course of proceedings.  Further, the exercise of the discretion as to costs must result in a decision which is just and reasonable.

31.  The Prosecution Code at §21.6 sets out reasons which may be relied upon to refuse an order for costs following acquittal, including, amongst other things, where the accused has brought suspicion upon himself or herself by his or her conduct.

32.  In HKSAR v Tong Cun Lin (1999) 2 HKCFAR 531 at §§14 and 20, the Court of Final Appeal (“CFA”) stated the general principles governing costs following an acquittal as follows:

(1)  Where a defendant has been brought to trial upon particular charges and is then found not guilty, he should normally be entitled to the costs incurred in defending those charges.

(2)  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.

(3)  This cannot be confined to any particular period of time, but the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial.

(4)  This includes how the defendant first responded to investigators, the consistency of those answers with his subsequent defence, etc.

(5)  The strength of the case against the defendant and the circumstances under which he came to be acquitted are also relevant.

(6)  Wide discretion is given to the trial judge who is in the best position to assess the large number of factors relevant to the exercise of that discretion.

(7)  The judge’s reasons for exercising his discretion must necessarily be brief.

33.  Further, in Tsang Wai Ping v HKSAR (2005) 8 HKCFAR 80 at §27, the CFA held that “the discretion is to be exercised having regard to the defendant’s conduct during the investigation and at the trial but the judge must not take a view of the facts palpably different from that taken by the jury”.  In other words, the decision on costs should not contradict the decision of acquittal.  Nor should it go against the presumption of innocence.

34.  Hence, in the context of deciding whether a positive reason has been shown as should deprive an acquitted defendant of his or her costs, the conduct of the defendant and the state of the materials available to the prosecution at any particular stage can be taken into account.  This is why the principle has been set out – by the CFA amongst others – that the conduct of an accused prior to and after the charge has been laid, including conduct in the run-up to and at trial, is all potentially relevant to the decision on costs.  So are the circumstances leading to the charge.

35.  By way of summary relevant to the core points in the current proceedings, I offer the following:

(1)  Generally, the award of costs is discretionary, and the discretion is wide.

(2)  The discretion should be exercised to award costs in favour of the defendant where the defendant is acquitted, unless there are positive reasons not to do so.

(3)  Those reasons focus on the defendant’s conduct, and the defendant’s conduct at all or various times in the investigation, charge and trial process may be relevant to the question of costs.

(4)  Further, conduct which is relevant may include that surrounding the circumstances or matters giving rise to the charge.

(5)  Relevant conduct may include (a) where the defendant’s own conduct has brought suspicion on himself, and (b) where the defendant has misled the prosecution into thinking that the case against him is stronger than it is.

(6)  The bringing suspicion on himself and/or misleading the prosecution about the strength of the case are but examples of the possible positive reasons for depriving an acquitted defendant of his costs.

(7)  A decision to refuse costs should not be contradictory to the reasons for acquittal.  That is, the Court must not act on a basis which contradicts the verdict of acquittal, or which undermines the presumption of innocence.

(8)  The person in the best position to weigh the relevant matters when exercising the discretion on costs is the trial judge.

(9)  In its judicial review supervisory role over the exercise of that discretion by the trial judge, the Court of First Instance does not sit on an appeal, still less does it assume the role of the original trial judge.

(10)  Judicial restraint must be shown, and the Court will be slow to interfere with the exercise of discretion by an inferior court where that court has correctly identified the relevant legal principles.

36.  As to any certificate for two Counsel, there is no express provision in the CCCO for a Court to certify a criminal case fit for the employment of any particular number of Counsel.  But it remains open to the Court to assist the taxing officer by giving such a certificate.  The relevant question to ask is whether a reasonable and prudent, but not overcautious person, would in all the circumstances seek the services of two Counsel notwithstanding the expense.  In short, the question is whether the services of more than one Counsel are reasonably necessary for the adequate presentation of the case.

E.  Grounds of Review

37.  The Applicant relies on the following grounds of review:

(1)  Ground 1: Illegality.

The Judge (a) erred in law, (b) materially relied upon an error of fact and/or took into account irrelevant factors and failed to take into account relevant ones, and (c) unlawfully fettered her own discretion.

(2)  Ground 2: Irrationality.

All of the grounds raised as to illegality also identify irrationality and/or Wednesbury unreasonableness.

38.  In his submissions, Mr Marwah described those two grounds as being opposite sides of the same coin, with both grounds premised on the same underlying points.

F.  Ground 1: Illegality

F.1  Refusal of Costs

39.  As to the refusal of costs, Mr Marwah submitted that:

(1)  The Judge erred in law by refusing costs for reasons that contradict the reasons for acquittal.

(2)  The Judge drew an unsupported inference and made a mistake of fact when she asserted that the Applicant had considered whether or not the three males were unauthorised entrants.

(3)  The Judge failed to consider relevant facts (though this point was not actively pursued in oral argument).

40.  As to the first point that the Ruling on Costs contradicted the Verdict, Mr Marwah submitted that (1) the Verdict found the Applicant had proved his statutory defence, such that the prosecution had not proved the requisite mens rea of the offence charged, whereas (2) the Ruling on Costs assumes that the Applicant committed the offence and possessed the requisite mens rea.  Mr Marwah submitted that this is because:

(1)  The question of whether the Applicant was aware of the possibility of the three males being unlawfully in Hong Kong was a central issue at trial, precisely because the Applicant relied on the statutory defence.

(2)  Had the Applicant not succeeded on that defence, he would have been convicted.

(3)  It fell to the Applicant to prove that he did not know, had no reason to suspect and could not with reasonable diligence have discovered that the three males were unauthorised entrants.

(4)  That is a mens rea defence, and the acquittal was premised on the Applicant’s proving those matters.

(5)  Before reaching her conclusion at §62 of the Verdict (see above), the Judge considered at some length the evidence and the parties’ respective cases, including the factors that supported the Applicant’s case that the three males did not seem to be unauthorised entrants.

(6)  Whilst the Judge did go on to say that the Applicant’s act was “suspicious”, she nevertheless acquitted the Applicant on the basis of the statutory defence which he proved.

(7)  In the Ruling on Costs, the Judge performed a volte-face, in that she found that the Applicant had knowingly assisted the three males despite the danger that they were unauthorised entrants.

(8)  That is inconsistent with the basis of acquittal premised on the Applicant having no mens rea.

41.  Mr Marwah emphasised that the Judge made a “finding” in the Ruling on Costs at §18 – namely that it came to the Applicant’s mind whether the three males remained in Hong Kong legally or not – and that that finding was incompatible with the acquittal on the basis of the statutory defence which presupposed that the Applicant had no reason to suspect that they might be in Hong Kong illegally, and he had no duty to make enquiries.

42.  In response, Ms Chan submitted that to understand the Judge’s ruling, the Verdict (and its reasons) must be read in the proper context of the statutory defence.  It was common ground that the statutory defence in section 37D(2) of the IO fell within the fourth alternative of the Kulemesin case, namely that the presumption of mens rea in respect of the offence has been displaced and that the accused is confined to relying on the statutory defence expressly provided for, the existence of such defence being inconsistent with the second and third alternatives mentioned in Kulemesin.

43.  Indeed, in HKSAR v Leung Chung Man [2025] 5 HKLRD 121 at §43, the Court of Appeal confirmed that the statutory defence falls under the fourth alternative in Kulemesin and imposes merely an evidential burden on the applicant to raise as an issue that all three conditions do not apply, leaving the prosecution to fulfill the persuasive burden of proving the subsistence of any of the three conditions.

44.  Ms Chan submitted that, to satisfy the evidential burden, the Applicant only had to adduce or be able to point to credible evidence to raise issues on the three conditions, and such evidence would have to be sufficiently substantial to raise a reasonable doubt as to his guilt.  Thereafter, it would fall to the prosecution to furnish sufficient evidence to prove the Applicant’s guilt beyond reasonable doubt.  In effect, she submitted, the Judge’s findings were that there was credible evidence to discharge the Applicant’s evidential burden to raise issues for the purpose of the statutory defence, and that whilst he had acted suspiciously, the prosecution failed to fulfil its persuasive burden of proving the Applicant’s guilt beyond reasonable doubt.  Hence the acquittal.

45.  Ms Chan further submitted that the fact that the Applicant was acquitted because the prosecution failed to prove the case against him beyond reasonable doubt on the statutory defence being raised does not preclude the Judge from finding, in a separate exercise of discretion on costs, that he acted suspiciously at the material time.  Indeed, the Judge all along consistently pointed out in both sets of reasons (i.e. the Verdict and the Ruling on Costs) that the Applicant acted suspiciously.

46.  In answer to my query on the point, Ms Chan also clarified what role any “findings” play in the discretionary assessment of whether a positive reason has been demonstrated for depriving an acquitted defendant of his costs.  She referred to The Queen v Kwok Moon Yan [1989] 2 HKLR 396 at 400, where the Court of Appeal rejected the submission that, because the discretion is so intimately connected with the facts of the case and the conduct of the trial that it is a discretion exercised in the course of criminal proceedings and therefore there is an onus upon the prosecution to prove beyond reasonable doubt that the circumstances justify the Court in declining to exercise its discretion in the defendant’s favour.  Instead, the Court pointed out that an award is discretionary and there is no “standard of proof” in the accepted trial sense.  I accept that submission.  In the discretionary exercise, which of course must be exercised judicially, the Court takes a view of the facts in deciding whether or not there is a sufficient positive reason to deny costs.

47.  I think this point on contradictory reasons is properly arguable, alone justifying the grant of leave to apply for judicial review on Ground 1.  Indeed, Mr Marwah’s submissions seem to have considerable force.  However, upon substantive review, the challenge fails.

48.  Ultimately, I agree with Ms Chan that what was said by the Judge in her Verdict and then in her Ruling on Costs needs to be seen in the proper context of the offence charged, and the statutory defence raised – properly understood.  Though section 37D(2) describes the statutory defence as arising when the defendant “proves” that “he did not know, had no reason to suspect and could not with reasonable diligence have discovered” that the persons assisted were unlawful entrants, the Applicant as defendant did not actually have to “prove” anything.  He merely had to raise sufficient evidence to satisfy the burden of forcing the prosecution then to disprove any one of the elements of the statutory defence, and to do so beyond reasonable doubt.

49.  In the Verdict, the Judge identified that the Applicant had satisfied the evidential burden in raising the points necessary for the statutory defence, namely that he did not know, had no reason to suspect and could not with reasonable diligence have discovered the illegal status of the three men.  She pointed out those parts of the evidence which were supportive of or consistent with the statutory defence.  There was, however, no particular standard required in meeting that evidential burden, except that it would be sufficient to give rise to at least a reasonable doubt as to guilt of the offence charged.  The Judge then identified that the prosecution failed to meet its persuasive burden of disproving any one of the elements of the statutory defence.  As she put it, the prosecution’s version of matters was not the only inference that might be drawn, so that there remained reasonable doubt as to guilt.

50.  That necessarily lead to an acquittal.  But that did not mean that the Judge found as a fact – whether on the civil or criminal standard of proof – that the Applicant did not know and did not have reason to suspect and could not with reasonable diligence have discovered the legal status of the three men.  Indeed, no such finding was necessary.  What the Judge found was that the prosecution failed to satisfy its burden of showing beyond reasonable doubt that the Applicant, who had properly raised the issue by way of sufficient evidence, in fact did know or did have reason or could with reasonable diligence have discovered that the three men were illegally in Hong Kong.

51.  In the Ruling on Costs, the Judge relied on various factual matters as giving rise on the discretionary assessment to the conclusion that the Applicant brought suspicion on himself.  Assuming that the inferences of fact were properly open to her on the materials – addressed below – the Judge’s statement, for example, that whether the three males were in Hong Kong illegally came to the Applicant’s mind was not a “finding” of the sort which was incompatible with or contradictory to the basis of acquittal.  Indeed, her reliance on various facts was not by reference to any standard of proof in the accepted trial sense.  This is because the process of assessment on costs was a different exercise.

52.  Essentially, there was a “gap” which arose between (1) the evidential burden satisfied by the Applicant in raising the statutory defence, and (2) the failure of the prosecution to meet its persuasive burden in proving beyond reasonable doubt that the Applicant did know or did have reason to suspect or could with reasonable diligence have discovered the illegal immigration status of the three men.  Within that “gap”, there was room for the Judge nevertheless to conclude that the surrounding circumstances showed that the Applicant brought suspicion upon himself.

53.  In those circumstances, I conclude that the Judge did not take a view of the facts palpably different from that taken by her when she acquitted the Applicant.  This was, of course, in circumstances where the Judge knew precisely what view of the facts she had taken – in contrast with the opacity of a jury verdict, which ordinarily does not enable identification of the precise findings or reasons for acquittal.  Indeed, the view of the facts taken by the Judge as expressed in the Verdict included that the Applicant had acted suspiciously.

54.  In other words, the Ruling on Costs did not contradict the decision of or reasons for acquittal given in the Verdict, and did not undermine the presumption of innocence.

55.  But, Mr Marwah further submitted that the Judge’s inference that the Applicant had reason to suspect the three males were unauthorised entrants was “plainly absurd”.  Her reliance was placed on the contemporaneous ROI and the Applicant’s answer (see above) that he did not know whether the three men were “legal or illegal in Hong Kong”.  Mr Marwah argued that this point was not raised at the hearing, nor in the costs submissions made by the prosecution, and even ignoring those procedural irregularities and unfairness, the Judge overlooked the proper context.  That proper context was, he said, that the relevant answer was given by the Applicant during his cautioned interview shortly after arrest, the repeated caution having been specifically given upon and after arrest for the offence of aiding and abetting illegal entrants.  Hence, Mr Marwah submitted, the Applicant was simply and only responding to the police enquiries about what he knew, when he was doing his best to allay any suspicion about himself.

56.  Mr Marwah further submitted that, even if the matter as to whether the three men were legal or illegal entrants crossed the Applicant’s mind after arrest, that does not of itself constitute sufficient conduct to bring suspicion upon himself before or during the alleged offence.

57.  Ms Chan countered the suggestion that the Judge made any material mistake of fact in her approach to the ROI Q&A 7.  Ms Chan submitted that the entire ROI, including the recorded cautions, was before the Judge and must be taken to have been firmly in mind.  Further, the flow of questions from Q5 onwards showed the focus of the police’s questioning was clearly on what happened at the material time of the potential offence, so that the Applicant was also making reference in A7 to the events at the time of the offence.  As Ms Chan put it, the Applicant “volunteered” – in answer to the question merely whether he knew the three men – that he did not know whether they were legal or illegal in Hong Kong.

58.  Ms Chan also pointed to the translation of A7 from Punjabi to English provided by the interpreter during the interview, which supports the view that all of the answer was making reference to events at the time.  That translation was:

A7:  No, I just met them at the road.  I was waiting for the taxi, and they approached me and said they could not find the taxi, and if I can help them to give a ride and I was not aware [whether] they were legal or illegal in Hong Kong.  Nor they give nor I asked for any money for the ride.

59.  On that basis, Ms Chan submitted that the Judge’s observation that the answer showed the issue of immigration status came to be queried in the Applicant’s mind at the time is a fair and accurate reading of the answer, reinforced by the background fact (also expressly pointed out by the Judge) that the importance of the right to remain was known to the Applicant as a Form 8 holder.

60.  I think there is considerable force in Mr Mahwah’s argument.  It seems to me that one clear reading of the answer A7 is that the Applicant was simply saying during the interview that he did not know anything about the immigration status of the three men, and that he was not suggesting that any query arose in his mind at the time that they asked for a ride in the taxi ordered by the Applicant.  To put it another way, he knew the whole interview was centred on the allegation that he had knowingly assisted illegal immigrants, and he was simply saying he knew nothing about their status one way or the other.  As it was also put by Mr Marwah, the Applicant was essentially just a good Samaritan and he was merely saying that the question of immigration status simply did not come to mind.  Left entirely to myself, I might well have read the answer in that way.

61.  However, having carefully considered the materials overall, I do not think I can say that it was not properly open to the Judge to take a different view, and to draw the inference that there was some contemporaneous query in the Applicant’s mind as to the immigration status of the three men.  This is so not least against all of the other factual circumstances referenced by the Judge – such as that the lawfulness of immigration status might fairly be expected to be in his mind as a Form 8 holder on recognizance, that the Applicant was not permitted to work in Hong Kong yet he apparently made no inquiry about the three men’s destination and settlement of the taxi fare, and that the Applicant could readily have engaged with at least two of the men who spoke Punjabi.  The Judge might also properly have had in mind, even if she did not expressly reference them, some of the other surrounding circumstances as were relied on by the prosecution in its written submissions as to costs.

62.  Mr Marwah lastly submitted – in a point which he did not address orally – that the Judge also failed to take into account various factors, such as that (1) the Applicant fully cooperated with the police upon arrest, (2) he provided a cogent and consistent explanation of his version of events, (3) the Applicant’s case at trial was entirely consistent with his cautioned statement in the ROI, and (4) the Prosecution had all of the matters relied upon by the Applicant when it chose to bring the prosecution, notwithstanding the strength of his defence.

63.  As to the suggestion that the Judge failed to take into account the various matters relied on by Mr Marwah, Ms Chan said that (1) the Judge was fully aware of the cooperation of the Applicant with the police, which she expressly noted in the Ruling on Costs, (2) cooperation itself does not entitle the Applicant to costs, (3) the present case does not involve any misjudgment of the evidence on the part of the prosecution, and (4) there is no proper basis for criticising the conduct of the prosecution at trial.  I agree with Ms Chan.  There is nothing in the criticism that the Judge failed to take certain matters into account.

64.  In conclusion, therefore, I reject on substantive review the challenge to the denial of costs based on contradiction, improper influence or failure to take matters into account.

F.2  Refusal of Certificate for two Counsel

65.  As to the refusal to grant a certificate for two Counsel, Mr Marwah submitted that:

(1)  The Judge erred in principle by failing to ask whether the Applicant acted reasonably.

(2)  The Judge irrationally concluded that costs would have been saved by delaying the case for translation.

(3)  The Judge failed to consider relevant facts which materially impacted whether instructing two junior Counsel was necessary in the present case.

66.  As to the first error advanced, Mr Marwah submitted that the Judge failed to apply the correct test, because she never asked whether the Applicant acted reasonably.  He emphasised that the question is not whether another course of action could have been taken, but whether the Applicant acted reasonably in the circumstances.

67.  Mr Marwah also submitted that:

(1)  the Judge failed to give sufficient weight to the seriousness of the charge and the complexity of the matter;

(2)  as an immigrant to Hong Kong, a conviction would end the Applicant’s chance of obtaining a residence visa as he would have a record of detriment;

(3)  Mr Marwah was originally instructed as sole Counsel, on the basis that all evidence then disclosed was in English;

(4)  it was only at the last moment that the assistance of undisclosed, untranslated Chinese-language documents (including notebooks of the prosecution witnesses) became apparent, notwithstanding prior disclosure requests, and they were made available only on the first morning of trial;

(5)  the prosecution witnesses gave evidence in Chinese (through an interpreter) and were cross-examined in respect of those new documents, identifying their materiality;

(6)  it was necessary and reasonable for the Applicant therefore to instruct another junior junior (i.e. Mr Pannu-Yuon, 2024 Call), who can read and speak Chinese;

(7)  in terms of complexity, the Judge failed to consider the trial also involved constitutional arguments relating to the statutory presumption, which the prosecution only indicated it would rely on mid-trial;

(8)  the idea that the Judge would have granted time is counterfactual, and the reasonableness of instructing Mr Pannu-Yuon had to be assessed at the time the decision was made, and not with hindsight;

(9)  the Judge irrationally concluded that it was more economical for the case to have been adjourned rather than an additional junior to be instructed.

68.  Ms Chan first submitted, as must be right, that if there is no valid public law ground to disturb the refusal of costs, any debate about a certificate for two Counsel is moot.  As I have found that the public law challenge to disturb the refusal of costs fails, that is the end of the matter.

69.  Nevertheless, Ms Chan also submitted that there is no room for legitimate criticism of the Judge’s refusal to grant that certificate in any event.  The Judge did not fail to apply the correct test, (1) where her attention had been drawn to the appropriate question to ask namely whether the defendant acted reasonably in instructing the Counsel that he did, and (2) where the analysis conducted by the Judge identified that she had that test firmly in mind.  The case was not complex, the witnesses were few, and the documentary exhibits comprised one set of admitted facts, one set of the ROI with only eight Q&A, and one five-page document concerning the “non-stamping immigration clearance arrangement”.  Nor was cross examination lengthy.

70.  I see some force in the argument that it may have been a false economy to seek time to deal with late production of Chinese language materials as opposed to instructing Chinese-proficient Counsel to assist – and, incidentally, I also see value to the Court and its administration of justice in not requiring any adjournment.  However, where the Judge has apparently adopted the appropriate assessment, I do not think there is a proper basis for interfering with her broad exercise of discretion.  To look at the Applicant’s argument from the other side, the possibility that the Judge might have taken a different view does not mean that the view taken by her was one in which the Court should interfere.

G.  Ground 2: Irrationality

71.  I do not think the challenge based on irrationality, itself premised on the same underlying materials, fares any better.

72.  It may not matter whether I would have granted leave to apply for judicial review on this Ground 2 as well, as it would fail on substantive review in any event.

H.  Result

73.  Overall, I think the intended judicial review challenge was sufficiently arguable as would have justified the grant of leave to apply.  However, upon substantive review, the challenge fails on both Grounds advanced.

74.  In the circumstances, the Applicant’s application is dismissed.

75.  Where there has been a full argument of the matter on a rolled-up hearing, it seems to me that costs should follow the event.  Therefore, in the exercise of my discretion on costs, I order the Applicant to pay the costs of the Respondent to be taxed if not agreed.  As I understand it, Mr Marwah understandably accepted that any costs order should be accompanied by a certificate for two Counsel, where both sides appeared similarly armed on this argument.  I grant that certificate. 

76.  However, I make the above orders initially on a nisi basis, to become absolute if either party seeks a variation within 14 days.  Any variation application will be dealt with on paper.