HKSAR v. LI SEE MING ALVIN

HCMA620/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.620 OF 2004

(ON APPEAL FROM ESCC3658 OF 2003)

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J U D G M E N T

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1. The appellant was acquitted after trial in the Shatin Magistracy of six charges of common assault, contrary to Common Law and section 40 of the Offences Against the Person Ordinance, Cap.212. The alleged victim of the assaults was the appellant's maid and the assaults were alleged to have occurred in the appellant's home at which the alleged victim was employed, on six different dates beginning on 9 July 2003 and finishing on 13 September 2003.

2. Evidence was led at the trial on 25 and 26 March 2003 and the court returned its verdicts of acquittal on 29 March 2003. The appellant was represented by counsel.

3. On 3 May 2004, the magistrate, Mr Johnny J.H. Chan dismissed an application made by the appellant in person for the award of costs.

4. By a notice of appeal dated 14 May 2004 and filed on 15 May 2004 in Eastern Magistracy, the appellant appeals against the refusal of the magistrate to award him costs. The grounds of appeal are "the said magistrate had unreasonably dismissed my application for costs after acquitting me of the Common Assault charges."

5. The magistrate articulated his reasons for refusing the application of costs and a document entitled Reasons for Refusal to Award Costs, dated 10 June 2004.

Jurisdiction

6. The issue of whether or not in circumstances, where a magistrate has refused to make an order awarding costs, there lies an appeal to this court was addressed in HKSAR v. Coghlan [1999] 4 HKC 508. In that magistracy appeal the appellant, although acquitted of the single charge of not displaying in a conspicuous place a valid vehicle licence on his motor cycle, was refused his costs. On his appeal, the prosecution submitted :

"(i) that no order for costs was made by the Magistrate and therefore there is no order for appeal;

(ii) that s.19(1) of the Costs in Criminal Cases Ordinance, Cap.492, provides for an appeal only when an order has been made awarding costs to a party but makes no provision for an appeal where no costs are awarded and therefore there is no statutory provision for an appeal against an order refusing in costs."

7. Gall J held against those submissions, determining that an application for costs required an exercise of the judicial discretion of the magistrate and a determination by him as to whether to grant or not to grant the application.

"... His decision was not to grant the application and he therefore made an order refusing the application ...."

Gall J went on to note that sections 19(1) and (3) of the Costs in Criminal Cases Ordinance, Cap.492, which applies to the magistrates court, makes provision for a right for appeal in a party against whom an award of costs has been made. However, it is silent as to whether an appeal lies in respect of an order not to award costs to a party. Nevertheless, Gall J held that in those circumstances, the right to appeal such a refusal to make an order pursuant to section 113(1) of the Magistrates Ordinance, Cap.227, not having been expressly or impliedly repealed by the Costs in Criminal Cases Ordinance provides for a right of appeal in the circumstances that obtained in that case.

8. Accordingly, I am satisfied that I have jurisdiction to entertain this appeal.

9. In his Reasons for Refusal to Award Costs, the magistrate has set out at some length the evidence produced at trial. The prosecution called the alleged victim and two other domestic helpers as their witnesses. The appellant gave evidence and called two witnesses as to facts and two character witnesses.

10. Of the exercise of the power to award costs to an acquitted defendant pursuant to section 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap.492, the magistrate said :

"... It is trite law that costs should follow the event unless the defendant is in some way at fault in one of the following situations:

a. The defendant brought suspicion upon himself.

b. He misled the prosecution into thinking that the case is stronger than it is, or

c. The defendant is acquitted on technicalities despite ample evidence to support a conviction."

(See The Queen v. Kwok Moon Yan [1989] 2 HKLR 396 at 401B-F.)

11. The magistrate went on to consider the judgment of the Court of Final Appeal delivered by Litton PJ in Tong Cun Lin v. HKSAR (1999) 2 HKCFAR 531 at 535. In that case, the court was concerned with the exercise of the discretion to award costs pursuant to section 73(A)(1) of the Criminal Procedure Ordinance, Cap.221. Litton PJ said (page 535D-H) :

"... 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."

Reasons for verdict

12. It is clear from a reading of paragraphs 10-13 inclusive of the magistrate's Reasons for Refusal to Award Costs that the magistrate determined that he was unable to rely upon the testimony of the complainant. The magistrate noted "PW1's evidence was unsatisfactory in many respects." Thereafter, he set out illustrations from the evidence of that finding. In the result he determined : "because of the observations I made about the evidence of PW 1, I was left with some doubts. In my judgment, the prosecution failed to prove the charges against the appellant beyond reasonable doubt. I found the appellant not guilty of all six charges."

13. Of the appellant's conduct during the investigation by the police, the magistrate makes very little mention other than to references to statements in two cautioned statements taken from the appellant. (See paragraph 14 of the Reasons for Refusal of Costs.) Those two statements are described in the list of exhibits as defence exhibits D2 and D3. It is difficult to discern how they came to be in evidence since the prosecution witnesses were three domestic helpers and there is no mention of them in the Admitted Facts. However it is that they came to be an evidence it is clear that in the first place that the appellant did not exercise his right of silence rather he answered questions of him in two interviews, the one of 15 September and the other 2 October 2003. Initially, the allegation of assault put to the appellant was that he had assaulted the complainant at 11 a.m. on 11 September 2003. It is to be noted that that allegation finds no place whatsoever in any of the charges. In answer to that allegation, the appellant asserted an alibi, namely that he was working at Ma On Shan Police Station and named witnesses in support of that alibi as including Chief Inspector Ho Chiu Ling and other officers. He went on to offer to provide the investigating officers with the occurrence book and the witnesses to prove that the allegation was false and that the complainant had told a lie.

14. The prosecution accepted that this original allegation by the complainant was incorrect. The context of that mistake is that the report to the police of these matters was made by the complainant on 14 September, and the event concerned mistakenly identified as 11 September 2003.

15. Although the learned magistrate had identified the issues relevant to determining whether or not the appellant was at fault so that costs might be refused, nowhere does he make any finding by way of answer to the question posed other than to deal with the conduct of the defendant at trial. However, it is clear from his Reasons for Refusal to Award Costs that the appellant did not bring suspicion on himself, nor did he make the prosecution believe its case was stronger than it is. It is certain that his acquittal was not based on a technicality; it was based on the lack of reliability of the primary prosecution witness.

16. The magistrate was trenchant in his criticisms of the defence evidence. He found the appellant to be a dishonest and unreliable witness. Of course, the magistrate heard the whole of the testimony and there is not available to me even a transcript of the appellant's evidence. Having said that, it seems to me that some of the criticisms of the contrast between the accounts of the appellant in his cautioned statement and his testimony are unduly critical.

17. In the result, the magistrate determined "I rejected to the appellant's evidence and that of his witnesses."

18. In conclusion, the magistrate determined :

"Taking into consideration the conduct of the appellant at the trial, I came to the conclusion that the appellant should not be awarded his costs. Quite apart from the fact that I rejected the appellant's evidence as unreliable and incredible, it is obvious that the appellant had orchestrated witnesses to give false evidence on his behalf."

They are followed a reference to the fact that two character witnesses, superintendents in the Hong Kong Police, had signed witness statements, the body of which gave character evidence which was identical. It seems to me that to characterise that as orchestrating witnesses to give false evidence is to overstate the position.

19. Nowhere in his ruling does the magistrate address the issues specifically raised by Litton PJ in his judgment in Tong Cun Lin, namely, whether by his conduct, the appellant should be deprived "of all or part of his costs." Clearly, by his findings, the learned magistrate determined that the prosecution failed regardless of the determination that he reached in respect of the defence case. Nowhere does he advert to the fact that the appellant had successfully refuted the false allegation by the complainant that he had assaulted her on 11 September when first interviewed about the matter with the result that that charge was never laid. In those circumstances, the magistrate has not had regard, as he should have had, to all of the matters relevant to the exercise of his discretion. Accordingly, it falls to me to determine how that discretion ought to be exercised having regard to all of the factors to which regard should have been had. On the material available to me, I am not able to say that the magistrate was wrong in reaching the determinations he did in respect of the conduct of the defence case. However, that ought to have been balanced by his finding in respect of the failure of the prosecution case and, by matters to which he does not advert, namely, the conduct of the appellant in the process of the investigation and his successful refutation of the false allegation in respect of the assault on 11 September 2003.

20. Taking matters in the round, in my judgment, the appellant is entitled to one-half of the costs of his defence at trial, to be taxed if not agreed, but limited by section 3(2) of the Costs in Criminal Cases Ordinance, Cap.492, to $30,000.