HKSAR v. HAU KAI HUNG

HCMA922/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.922 OF 2003

(ON APPEAL FROM KCCC 5757 OF 2003)

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J U D G M E N T

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1. The appellant was charged on 14 April 2003 with one charge of possessing equipment for making a false instrument. The charge related to premises at Flat 6, 2/F, On Kwai Building, Whampoa Estate, in Hunghom, where the police had found a number of machines, encoding machines, rolls of tin foil and pieces of white plastic cards from which credit cards could be made and two note books containing credit card data information and the charged related to the intention to use that equipment to create false credit cards using the data from real credit cards so as to pass off the false cards as genuine.

2. The flat in question had been rented to the appellant and sublet, she said, to Lo Kwok Wah who was her co-accused. The appellant, after arrest, made a post-record of a statement to the police in which she said, "That unit is rented by me. I let my friend live there." and there was nothing further in that statement. Her first reaction to the police was that she had no connection with the premises.

3. On 12 April, a further statement was taken from her relating to her background, the fact that she was married and the renting of this premises. She said in that statement that she rented the premises on behalf of a girlfriend and that the girlfriend had lived there but then moved out. The premises were then empty. She acknowledged the tenancy agreement that she had with the landlord and acknowledged her responsibility for paying the rent. At that point there was a break in the taking of the statement and when the statement recommenced she was further cautioned and asked if she was willing to answer "the questions I ask you". She answered this :

"I understand. But I have now sublet this premises to somebody else. I really know nothing at all and so I do not wish to answer any question from now onwards."

She was then shown the various exhibits found in the room and denied ever having seen them. She then declined to answer further questions.

4. That was the sum total of the evidence against the appellant. The fact that she was the tenant of the premises, the fact that she, on the police case, was known to her co-accused and her admission that she had sublet the premises to him.

5. On 28 July, the prosecution amended the charge which she was facing by deleting her name and withdrawing the charge against her. The appellant made an application to the magistrate for an award of costs. The magistrate in his findings set out section 3 of Costs in Criminal Cases Ordinance, Cap.492, which reads :

"3. Defence costs in summary proceedings

(1) Where-

(a) an information or complaint laid before a magistrate is not proceeded with;

(b) a magistrate, under section 104 of the Magistrates Ordinance on the application of the defendant or on his own initiative reviews his decision, and on that review reverses or varies his decision;

the magistrate may order that costs be awarded to the defendant."

6. The magistrate considered the application for costs and refused it. He set out correctly the law in respect of the award of costs that costs should follow the event unless the defendant is in some way at fault in one of the following situations :

"(1) The defendant brought suspicion upon himself,

(2) He misled the prosecution in to thinking that the case is stronger that it is, or

(3) The defendant is acquitted on technicalities despite ample evidence to support a conviction."

7. The magistrate in his reasons for refusing the order for costs said this :

" In my view, a person who lent her name to rent a flat and then subsequently let others occupy it on a causal basis has acted in her own peril: even giving credence to the most innocent explanation, Ms HAU has acted in a careless or even reckless manner and had brought suspicion upon herself. On this basis I rejected her application for costs."

8. It cannot be true that a person who allows someone else to occupy premises to which they have a right is inevitably bringing suspicion upon themselves.

9. Ms Shine, for the respondent in her most helpful address on the matter has referred me to one passage in the statement made by the appellant to the police which she says was a bringing of suspicion upon herself, that is the passage to which I have referred. It is her argument that when the issue of subletting was raised, her failure to reveal to the police who the sub-tenant was and any details about him amounts to a bringing of suspicion upon herself.

10. This is a difficult issue in as much as the appellant had a right to silence. On the one hand, on Ms Shine's argument, she had an obligation, if she is to avoid being refused costs, to be as helpful as possible on matters not going directly to her own position but on the other hand, she had a right to preserve her position by not answering the police questions. I note further that the officer conducting that interview accepted what she said and asked no questions in respect of the person to whom she had sublet the premises.

11. In all the circumstances, I am of the view the magistrate was in error when he found that the appellant had brought suspicion upon herself. She, perhaps, did not co-operate as fully with the police as they would have liked but nothing that she did or said and none of her actions brought suspicion upon herself.

12. This appeal is allowed and the appellant will have costs here and in the court below.