HKSAR v. WONG PAK NIN

HCMA 560/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 560 OF 1999

(On Appeal from TMCC 409 of 1999)

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J U D G M E N T

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1. Appellant was acquitted in the Magistracy on one charge of Managing a Vice Establishment and one charge of Living on the Earnings of Prostitution. The only evidence against him was admissions contained in a Record of Interview in respect of which a voir dire was held. The Magistrate ruled the Record of Interview to be inadmissible; as there was no other evidence there was no case for Appellant to answer and he was acquitted. Appellant applied for his costs, which application was opposed by Respondent. After hearing argument the Magistrate refused the application. Appellant appeals that refusal.

2. The Respondent submitted first that this court has no jurisdiction to hear an appeal against an order refusing costs. After hearing argument I accepted that on the basis accepted by Mr Justice Gall inHKSAR v .C.D.F. Coghlan M.A.1004/98, I did have jurisdiction.

3. I went on to consider the point in issue, which was whether the Magistrate having ruled the Record of Interview inadmissible and not proved to be voluntary, could nevertheless rely on it to find that the Appellant brought suspicion on himself and refuse him his costs.

4. The Costs in Criminal Cases Ordinance, Cap 492, operative since July 1997, governs costs in the Magistracy. There was agreement that in considering the exercise of the discretion to award costs, guidance can still be found in para. 4 of the Practice Direction [1981] 3 All ER 703.

5. Thus an order for costs should be made unless there are positive reasons for refusing such an order. If an accused has brought suspicion on himself, or if he is acquitted on a technicality, those may be positive reasons for not making an order for costs.

6. Counsel for Appellant submitted that once the Record of Interview was ruled inadmissible it was as if it had never been made (Lam Chi-ming v. The Queen (PC) [1991] 2 AC 212) and that being the case Appellant cannot be said to have brought suspicion on himself, nor can it be said he was acquitted on a technicality.

7. He pointed out that in Appellant's first interview he had denied the allegations put to him and that the second Record of Interview, in which the admissions were made, had come into being some time later. Further, counsel pointed out that the Magistrate had found the statement not to be voluntary, rather than having ruled it out in the exercise of his discretion.

8. In ruling on voluntariness the Magistrate was aware the Appellant had made no admissions at his first interview. His reasons for ruling out the statement appear somewhat confused. Having said that he did not find Appellant to be a truthful witness he went on to say that he did not think it more likely than not that there were threats, inducement or oppression. He then stated; 'I considered it somewhat odd that the defendant had that sudden change of stance between the first and second interviews. I considered that there was a reasonable doubt that the taking of the cautioned statement was tainted with such improper inducement, threats or oppression. My doubt was not dispelled. Since there was a reasonable doubt, the Defendant was entitled to the benefit of the doubt on the special issue.'

9. It is rather difficult to deduce from that ruling the reason why the Magistrate thought that the appellant had brought suspicion on himself, other than by his relying on the alleged admissions which had been ruled out. He said in effect that Appellant's account of how the statement was obtained might be true, but that by giving answers, even if possibly obtained by improper methods, he had brought suspicion on himself. That attitude appears to reward law enforcement authorities which obtain a confession by improper means by protecting the prosecution from an award of costs.

10. Counsel for the Appellant relied on the case of Cheung Bing Kwong v. Attorney General reported at [1999] HKC, although the case was actually decided by Mr Justice Mayo, as he then was, in 1993. That was a judicial review of a District Court judge's refusal to grant costs in a case where the facts were almost identical with those in the instant case. The application succeeded and it was held that it was both an irrelevant consideration and an error of law to take into account the contents of a statement by a defendant, ruled to be involuntary and therefore inadmissible, as evidence that the defendant brought suspicion on himself for the purpose of refusing the defendant costs upon acquittal.

11. I do not agree with that holding in its entirety. I do not think it possible to say that on a costs application a magistrate can never take into account, for the purposes of deciding the application, the contents or provenance of a statement that has been ruled inadmissible. There may well be circumstances where although a statement is ruled out, the evidence relating to its provenance or contents may reveal that the accused brought suspicion on himself. A Magistrate, in certain circumstances, must be able to examine a confession statement from one view for the purposes of determining admissibility, but from a different standpoint for the purposes of deciding an application for costs.

12. However on the facts of this case and having considered the magistrate's reasons for excluding the statement, it appears that he has relied only on the admissions contained in the statement to decide that this Appellant brought suspicion on himself despite having doubts about the way the statement was obtained. Accordingly I allow this appeal and award the appellant his costs in the court below and in respect of this appeal, such costs to be taxed if not agreed.