HKSAR v. LAI KWOK YING

HCMA 268/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 268 OF 2004

(ON APPEAL FROM KCCC 15405/2003)

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J U D G M E N T

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1. This Appellant was tried in the Magistracy on two charges of Common Assault. The Magistrate having heard the prosecution evidence ruled there was no case to answer on either charge and acquitted the Appellant. The Appellant applied for the costs of the trial but that application was rejected by the Magistrate. The Appellant appealed against the Magistrate's decision to reject her application. The appeal was heard and judgment was reserved to be handed down at a later date. Judgment is now given.

2. The trial in respect of which the application for costs was made was a trial de novo. The Appellant had appeared earlier before another Magistrate on the same two charges and after the conclusion of the prosecution evidence, he ordered a trial de novo.

Provision for Costs in Criminal Cases

3. Defence costs are provided for in section 3C of the Costs in Criminal Cases Ordinance, Cap. 492 which states:

"Where ... a Magistrate dealing with a summary offence or any offence summarily dismisses the information or complaint or acquits the defendant ... the magistrate may order that costs be awarded to the defendant."

4. In Tong Cun Lin v HKSAR [2000] 1 HKLRD 113 the Court of Final Appeal considered the question of defence costs and set out factors a Magistrate or judge should consider when exercising the discretion to award costs:

"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 defendants' 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 consequent 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 two 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 non-guilty verdict." (per Litton PJ at 117F-J)

Grounds of Appeal

5. There were four grounds of appeal which are summarised:

1st ground

The Magistrate wrongly exercised his discretion by depriving the Appellant of her costs and strayed from the guidelines laid down in Tong Cun Lin v HKSAR [2000] 1 HKLRD 113.

2nd ground

The Magistrate failed to take into account adequately, or at all, factors which the authorities require to be considered in such an application for costs.

3rd ground

The Magistrate wrongly exercised his discretion by adopting "a palpably different view of the evidence to that on which he acquitted the Appellant in considering the Appellant's application for costs".

4th ground

This, stated as an alternative to Grounds 1 and 3, was that the Magistrate failed to give adequate, or any, reasons to support his finding that the Appellant had attracted the attention of the police and that the prosecution against her had been properly brought.

Respondent's Argument

6. The Respondent submitted that Tong Cun Lin laid down general guidelines and that in a common assault case such as this the conduct and behaviour of the parties at the time of the incident were relevant factors to be considered in the context of a costs application.

7. In relation to Ground 2, the Respondent conceded that three factors weakened the prosecution case. These were: (1) that PW1 and PW2 had exchanged their statements before the first trial; (2) they had given inconsistent statements to the police and (3) the circumstances under which the Appellant was acquitted.

8. The Respondent submitted that there was no support for the Appellant's allegation that the Magistrate had ignored her counsel's submissions and that the weaknesses in the prosecution's evidence were in the Magistrate's mind when he considered the costs application.

9. On Grounds 3 and 4, the Respondent submitted there was evidence to support the Magistrate's findings regarding the Appellant's confrontational behaviour. As such evidence would be obvious from the trial record it was submitted the Magistrate could not be criticised for not having set it out fully in his Reasons.

10. The Respondent submitted further that the Magistrate was entitled to draw the irresistible inference that the Appellant had put herself unnecessarily in a position where confrontation with PW1 was inevitable.

11. The Respondent's main argument was that the Appellant had to show that no reasonable tribunal would have arrived at the decision the Magistrate did before the discretion could be interfered with. Further, that an appellate court would have exercised the discretion differently was no ground to upset a discretionary decision of a lower court.

Magistrate's Reasons

12. In his Reasons for refusing the application, the Magistrate stated clearly that although he had formed the view that the prosecution's evidence was not acceptable, he did find the Appellant was directly responsible for the two altercations which resulted in the charges, in that she "unnecessary and gratuitously presented herself to PW1 in a confrontational manner.

13. The Magistrate was aware of Tong Cun Lin and he understood that the matter was one for the discretion of the trial court. He had considered the Appellant's behaviour in relation to the alleged criminal conduct and was satisfied that the Appellant's own actions had resulted in her being charged.

14. The Magistrate's reasons for rejecting the application were brief. He said he had acquitted the Appellant because he found the evidence of PW1 and PW2 'irreconcilably inconsistent'. That he should do so was almost inevitable as their inconsistent accounts and their efforts to improve them were the reason the first trial was stopped. However in the instant case the Magistrate 'formed the view on that part of the evidence I did accept that the defendant [Appellant] was directly responsible for the 2 altercations which resulted in the two charges'. He did not say what that part of the evidence was.

15. The Magistrate was entitled to accept all, part, or none of the evidence given by PW1 and PW2 and could rely on part of it as he said he did. However he did not consider further, (or if he did, omitted to mention it in his reasons) whether the prosecution should have proceeded with a fresh trial, relying on unsatisfactory witnesses who had shown themselves to be unreliable and to have tailored their evidence to strengthen the case against the Appellant.

16. While brief rulings are desirable and, it is accepted, it was unnecessary for the Magistrate to give a detailed account of his thought processes in arriving at his decision, it would have been helpful if he had explained why he was not prepared to rely on the evidence of PW1 and PW2 in finding a case to answer, yet found some of their evidence sufficiently cogent to enable him to conclude that the Appellant had been confrontational and thus refuse her costs. The Appellant's counsel was justified in his view that this suggested the Magistrate had, or might have, adopted contradictory views of the same evidence.

17. To that extent he ignored what was said in Tong Cun Lin which makes it clear that not only is it a defendant's conduct during the investigation, but also that at trial which is relevant:

"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 non-guilty verdict." (emphasis added)

18. The second trial apparently foundered for the same reasons that the first Magistrate had ordered a fresh trial - the 2 main witnesses had exchanged their witness statements before the hearing, in an effort to make their accounts consistent. While, as the Magistrate believed, the prosecution may have been properly brought, there were strong grounds for saying that the second trial should not have proceeded, given the deliberate contamination of the evidential waters by the prosecution witnesses and the consequential weakening, or destruction, of the prosecution case.

19 It was inevitable that in a fresh trial, searching questions about the conferring and statement-swapping would be asked. Indeed the Magistrate appears to have acceded to the no case submission because he found PW1 and PW2 were unreliable witnesses because of their behaviour, as well as the inconsistencies in their accounts.

20. Unfortunately the Magistrate did not address in his Reasons for Ruling the question of whether the prosecution should have proceeded with a second trial, given the actions of PW1 and PW2.

21. Having considered counsels' submissions and the Magistrate's Reasons I cannot be satisfied that the Magistrate gave adequate attention to all the factors he should have done in deciding whether or not to award costs. For those reasons I cannot be sure that his discretion was exercised in accordance with the principles expounded in Tong Cun Lin. The appeal is allowed and it is ordered that the costs of the trial de novo be awarded to the Appellant, together with the costs of this appeal. Those costs are to be taxed if not agreed.