HKSAR v. JERMICE ELENA C

HCMA 228/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 228 OF 2002

(ON APPEAL FROM WSCC 13332/2001)

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J U D G M E N T

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1. This is an appeal against the refusal by a Deputy Magistrate to order that the prosecution pay the costs of the two appellants, he having found there was no prima facie case for either of them to answer on any charge.

2. 1st Appellant was charged with two charges of obstructing a public officer contrary to sec. 23 of the Summary Offences Ordinance, Cap. 228: the first alleged that she obstructed one LIU Wai-tong, the second that she obstructed one TAM See-chiu. 2nd Appellant was similarly charged, the public officers being named as LEUNG Man-ping and TAM See-chiu respectively.

3. There was no identification evidence in respect of the charges said to have involved LIU Wai-tong and LEUNG Man-ping. Understandably the Deputy Magistrate found that there was no prima facie case to answer in respect of those two charges.

4. In respect of the offences said to have been committed by each of the appellants against TAM See-chiu the evidence was that he had been in possession of two bags which had been seized from another person (who is not a party to these proceedings) when two females had approached him and attempted to take the bags away from him.

5. Mr Pickavant, who appeared for the Appellants in the Magistracy, objected to dock identification. The Deputy Magistrate saw fit to uphold that objection. Unfortunately when later making a submission that there was no prima facie case for the Appellants to answer on any of the charges Mr Pickavant made the assertion that Mr TAM had not said that the two females had later been arrested by the police. That is incorrect. The witness said so, in terms.

6. A police officer was called as a witness. He testified that the two females he had arrested at that time were the two appellants. On identification, therefore, there was more than sufficient for a prima facie case for the appellants to have answered. The Deputy Magistrate ruled, without giving any reasons, that there was not. There was then an application by the Appellants for their costs. This was refused by the Deputy Magistrate who said

"The reason why I found them (sic) had not (sic) case to answer for Charges 6 and 8 respectively is that they were charged separately for resisting (sic) PW4 in his execution of his duties. Had they been charged jointly for resisting PW4 in his execution of his duty, I would have no hesitation to find a case for them, to answer.

...I am of the view that it is suspicious that they were involved in this incident in hawkering (sic)."

7. The correctness of the finding by the Deputy Magistrate is not the subject of this appeal. His reason for refusing them their costs is.

8. Costs may be awarded to a person acquitted by a magistrate consequent upon the provisions of sec. 3(1)(b) of the Costs in Criminal Cases Ordinance, Cap. 492. Such an award is discretionary.

9. Although dealing with an application under the now-repealed sec. 73A(1) of the Criminal Procedure Ordinance, Cap. 221, Litton, JA, said in HKSAR v TONG Cun Lin (1999) 2 HKCFAR 531 @ 535E:

"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."

10. These principles are equally applicable in the present circumstances. Thus it is the Appellants' conduct "relevant to the charges [they] faced" which the Deputy Magistrate should have considered. His suspicions that they were involved in an incident involving hawking are not relevant to charges that they obstructed a public officer in the execution of his duty.

11. It follows that the Deputy Magistrate wrongly exercised his discretion in depriving the Appellants of their costs. They are to have their costs, both here and below, to be taxed if not agreed.