HKSAR v. HUNG KAR YAN KARIN 孔嘉殷

DCCC 492/2024

[2026] HKDC 576

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 492 OF 2024

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RULING FOR COSTS

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Introduction

1.  After the acquittal of the defendant on 6 charges of “money laundering”, she asked for costs pursuant to section 5 of the Costs in Criminal Cases Ordinance, Cap 492.

2.  Prosecution opposed the application saying that the defendant had brought suspicion upon herself.

Law on costs recovery

3.  Section 5 of Cap 492 states:

“Where after trial in the District Court… a defendant is acquitted, the District Court… may order that costs be awarded to the defendant.”

4.  Since the legislative language is “may”, the court’s discretion is engaged; however, that discretion must be exercised judicially.

5.  As a general rule, the court should normally award costs to an acquitted defendant unless there are positive reasons to deprive him of such costs. One of the positive reasons is that the defendant has brought suspicion upon herself: Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308, at para 12.

6.  In considering whether, despite the general rule, a defendant 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: Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 at 535E-H.

7.  It is therefore clear that the conduct of the defendant constituting the charges is not being shut out from consideration; and that the conduct of the defendant during investigation and at the trial is most relevant in the evaluation.

8.  In HKSAR v Rahman Md Sheikh Mojibur [2020] HKCA 53, the Court of Appeal held at para 25 that:

“25.  Again, we must emphasise that a defendant is perfectly entitled not to answer questions or disclose his defence to the investigating authorities. That is his right. But if he chooses to exercise it, it does not mean that he cannot be deprived of costs if he had a perfectly good defence but chose not to give the slightest hint as to its existence, as happened in the present case. After all, it is possible that had the respondent disclosed his business dealings and the documentary evidence in support of them, the prosecution might have considered that they did not have enough evidence to proceed; in which case, the costs which were occasioned to the public and his own purse would have been saved. As it was, the judge accepted that “without telling the police that the defendant was engaged in second hand mobile phone trading (it) would be impossible for the police to know of this fact”.”

Circumstances of the present case

9.  The admitted facts included the following:

(a)  On 18 August 2017, at about 1340 hours, officers of the Narcotics Bureau arrived at the residence of the defendant at House A12, Fortune Garden, Tai Po, with a search warrant. That time, the defendant was the only person inside the premises. During the house search, a white paper bag containing cash in the amounts of HK$414,650 and US$500 was found in a compartment of a sofa on the 2^nd Floor. Items of jewelry and other items were also found.

(b)  At 1650 hours, officers from Financial Investigation Team of Narcotics Bureau also arrived. One of these officers declared arrest and cautioned the defendant for the offence of dealing with property known or believed to represent proceeds of drug trafficking. Having been cautioned, the defendant said, “I made those sums of money by operating a tutorial school.”

(c)  The defendant was granted police bail. On 18 December 2019, she refused bail and she was released.

(d)  On 5 September 2022, the defendant left Hong Kong. On 9 September 2022, defendant’s husband was deported from Hong Kong.

(e)  On 3 May 2023, an arrest warrant was issued against the defendant in relation to the present charges. DOJ obtained a restraint order against her property and on 28 August 2023, they wrote to her solicitors (letter produced as P39) asking whether the defendant would return to Hong Kong to face trial. (emphasis added)

(f)  On 6 March 2024, defendant’s solicitors wrote to the police advising that the defendant would voluntarily return to Hong Kong on 7 March 2024 with details of her flight provided.

(g)  On 7 March 2024, at 1930 hours, at the office of the Duty Officer of the Hong Kong Immigration Department at the Airport, airport police declared arrest on the defendant as she was a wanted person. The post-recorded cautioned statement of the arrest in the police notebook (P9A) reads “… I now arrest you for the offence of (being) a wanted person because I have reason to believe that you were involved in a case of dealing with property known or believed (to) represent (proceeds of) an indictable offence in the territory of Hong Kong between (one homophone) 2010 and 2017, case numbered FIIB 21000758. I now caution you, you are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence.”  After I had finished cautioning you, “Did not say anything.” (emphasis added)

10.  The prosecution case is by and large what follows.

11.  The substantial number of transactions and large amounts of funds passing through the 6 bank accounts (under respectively the 6 charges) were disproportionate to and inconsistent with the defendant’s reported income. Defendant was the sole signatory to the accounts and had control of the accounts. She dealt with the monies that passed through the accounts. Frequently the deposits and withdrawals were in cash, the cash transactions being relatively large and in close proximity of time. Defendant purchased two landed properties in this period (2010 to 2017). There was nothing to suggest the defendant or her husband Safder Tehseen had accumulated wealth in previous years. Defendant was herself a social welfare recipient between December 2003 and February 2009. Her husband did not file any tax returns. The tax return of the defendant did not record profit of more than $1 million in any year; and between 2010/2011 and 2014/2015 the profits can be described as modest (with even a loss in 2011/2012).

12.  The prosecution therefore alleged, with the material they had at the beginning of the trial, that the defendant engaged in money laundering between 2010 and 2017.

Reasons for the acquittal of the defendant

13.  The detailed reasons for acquittal can be found in the Reasons for Verdict [2026] HKDC 407. The prosecution case started up strong. Without more, there was a good chance the defendant would have been convicted of at least the first 5 charges. Essentially, the defendant was acquitted because of the defence case consisting in the main the viva voce evidence of the defendant (DW1) and her husband Safder Tehseen (DW3) supported by some documentary evidence.

14.  This defence case was disclosed for the first time in the trial. Although a defence expert report (D2) had been served on the prosecution prior to trial, it added little to what was contained in the prosecution expert report (P36) and would not have cast doubts on the prosecution case.

My considerations

15.  I quickly exclude from my consideration what cash and jewelry were found in the Tai Po house where the defendant resided back in 2017 because those items were never the subject of any charge. Consequently, what she said under caution in relation to the find was neither here nor there.

16.  I am of the view that defendant brought suspicion upon herself in the following ways:

(a)  On the face of the bank account statements, without more, it would appear it was the defendant who personally dealt with the numerous large transactions (many of them in cash) in the accounts without reasonable cause and which were also incommensurate with her and her husband’s[1] known financial statuses; and

(b)  In exercise of her right to remain silent when arrested and cautioned for alleged money laundering during the period from 2010 to 2017, even if it could be argued that she had not by this act alone brought suspicion upon herself, she had effectively shut the window of opportunity to allay the suspicion already established by the bank account statements; in other words, if she had told the police what she later told the court, the DOJ might have re-considered their position as to prosecution thus saving litigation costs.

17.  I therefore exercise my discretion to refuse the defence’s application for costs.

Certificate for two counsel

18.  Just for completeness’s sake, upon consideration of (i) the nature and gravity of the offences; (ii) the complexity of the case; and (iii) the sentence the defendant might face, I do not regard “two counsel” as being necessary for challenging the prosecution case and/or mounting of the defence case.

Conclusion

19.  For the above reasons, the defence’s application for costs is refused.