THE QUEEN v. CHOI YIN BUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 271 OF 1987

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JUDGMENT

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1. Earlier this morning I dismissed the appellant's appeals against conviction and sentence. The other matter, which follows upon the dismissal of those appeals, is the order which the magistrate made in respect of costs. Counsel for the Crown concedes that in view of-the judgment of Mr Justice Barnes in R. v. Ho Fai and since no opportunity had been given to the appellant to make any submission or representation with regard to the intended order for costs, the magistrate had not exercised his discretion judicially and that such an order should be quashed. With respect I agree with both that decision and the observations made by Crown Counsel. I think one of the most important matters which the magistrate should have taken into account before making such an order, was whether the appellant had sufficient means and the ability to meet it and this information can only have been obtained if the defendant were invited to make representations.

2. Having regard to the appellant's financial situation at the time when this order was made, he was then earning $2,500 p.m. as a Cook and was the father of five children, there was no justification that such an order be made at least not of the amount appealed against. Nowhere in the record does it appear that the magistrate had considered these matters when he wade the order against the appellant to pay $500 towards the costs for the prosecution.

3. I think Mr Tang is quite right in saying that the measure of a man's bail is not an indication of his ability to pay the equivalent in costs because there might be occasions where the necessary bail money had either to be borrowed, or raised from the forced sale of personal property. For these reasons, the appeal against the order for costs is allowed. The order is accordingly quashed and the amount paid if paid, is to be returned to the appellant.