LEE TO NEI v. HKSAR

FACC No 5 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 5 OF 2011(CRIMINAL)

(ON APPEAL FROM HCMA NO 403 OF 2010)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ :

1.  This is the judgment of the Court.  On 30 March 2012, the Court unanimously allowed this appellant’s appeal; quashed his conviction;[1] and made an order nisi that he should have his costs here and in the courts below, with liberty to file written submissions seeking a different costs order.

2.  While the prosecution accepts that the appellant should have the costs at the appellate stages, it has filed submissions contending that there should be no order as to the costs of the trial in the magistrates’ court.  Invoking well-known principles,[2] it seeks to argue that the appellant brought suspicion upon himself, in particular by his late disclosure of the identity of Man Tak Pharmacy, one of the two entities who allegedly supplied the counterfeit medicine in question.  The proposition appears to be that if this had been disclosed sooner, the prosecution might have been able to investigate whether Man Tak Pharmacy was a legitimate supplier.

3.  We do not consider that this argument bears on whether the appellant brought suspicion on himself.  It does not in any event reflect the way the case was prosecuted.  As noted in our judgment, the prosecution proceeded on the basis that the persuasive burden lay on the appellant to negate the three conditions bearing on liability, pointing to the absence of evidence as to the status of the suppliers as a point in support of conviction.  There is therefore no reason for thinking that earlier disclosure of Man Tak’s name would have made any difference.  This is especially so given that, shortly after his arrest and off his own bat, the appellant had produced to the Customs and Excise authorities an invoice identifying Chinese Pharmaceutical (International) Ltd as the other supplier.  There is nothing to suggest that any investigation of that company followed and no evidence was adduced by the prosecution at trial as to its status or repute.

4.  Realistically, if the prosecution had realised that it bore the persuasive burden on the basis of the read-down provision, it would have sought to adduce any available objective evidence to show how, by using reasonable diligence, the falsity of the marks was readily discoverable. The appellant’s evidence, late or otherwise, as to his subjective belief regarding the reputability of his suppliers would not have mattered.

5.  In such circumstances, the argument as to late disclosure does not bear on the suggestion that the appellant brought suspicion on himself.  We accordingly direct that the order nisi as to costs do stand as an order absolute.