HKSAR v. CHOW YUEN HAN

HCMA 877/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 877 OF 2008

(ON APPEAL FROM ESCC 1890/2008)

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J U D G M E N T

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1.  This Appellant was acquitted on one charge of “Soliciting for an Immoral Purpose” after trial before Magistrate Adriana Tse.  The Appellant was represented by Mr Rupert Spicer at trial and on her acquittal, Mr Spicer applied for the Appellant’s costs of trial on the basis that costs should follow the event.

2.  A copy of Mr Spicer’s written submissions [B12-14], which were put before the Magistrate before she gave her ruling, shows that he was under the misapprehension that the Costs In Criminal Cases Ordinance, Cap. 492 (“the Ordinance”) had not yet come into force, and that the principles governing costs in criminal cases for acquitted defendants were as set out in Ng Yui-kin and the Queen [1983] HKLR 356.  In fact the law has moved on since then.  The Ordinance has been operative since 17 January 1997.  The guiding principles which apply to cases of this nature are found in Tong Cun-lin and HKSAR [2001], Qamar Sheraz and HKSAR FACC 5/2007 and Ting James Henry v HKSAR FACC 4/2007.

3.  Briefly, an award of costs to an acquitted defendant is in the discretion of the judge who decides what the governing principles are in any particular situation.  Generally, the court should make an order for costs in favour of an acquitted defendant, unless he or she has brought suspicion on him or herself, by his or her conduct during the investigation and/or at the trial.  The court will consider inter alia the strength of the evidence against him or her and the circumstances under which he or she came to be acquitted.  The court should not deprive an acquitted defendant of costs on the ground that the acquittal was on a technicality, if that would violate the presumption of innocence in favour of the acquitted defendant.

4.  The Magistrate set out her reasons for refusing the Appellant’s costs at B16-18C.  She acquitted the Appellant because she was unable to rely on the evidence of the main prosecution witness, a police officer who was acting as a decoy in an undercover vice operation.  The officer gave contradictory and inconsistent evidence about the locus of his encounter with the Appellant.  The Magistrate believed that this was due to confusion, because he had effected nine arrests of a similar nature on the night the Appellant was arrested.

5.  However, the Magistrate took the view on the basis of the defence case as put to PW1 at the trial, that the Appellant had brought suspicion on herself.  According to the evidence, the Appellant, after meeting and chatting with PW1 in the street, had agreed to spend the night in PW1’s hotel room.  Further, the Appellant had not disputed that a bottle of baby oil, 11 condoms and 2 packets of lubricant were found in her possession.  The Magistrate refused to award costs.

6.  Prior to the appeal hearing, the Respondent served its submissions on the Appellant.  Those submissions were in English, so before the appeal hearing started, the court went through the submissions for the benefit of the Appellant who appeared in person.

7.  The Appellant repeated the same arguments as her former counsel had put before the Magistrate.  She was unable to understand why the Magistrate had refused her her costs when she had not been convicted, when it was not illegal for her to work as a prostitute, and when it was not illegal to carry with her the accoutrements of her trade as a sex worker.

8.  The Appellant believed that the Magistrate had misunderstood her counsel’s application and therefore made a wrong decision.  She alleged that the Magistrate had failed to notice a discrepancy in the evidence of PW1.

9.  In fact, the Magistrate was aware of the shortcomings in PW1’s evidence and quite properly acquitted the Appellant.  She had considered the costs application correctly.

10.  The Appellant referred to several cases when addressing the court without giving specific references to them.  One case she did cite was HCMA 134/2008, the name of the appellant being Tai Chau.  However, in that case the appeal judge found that the Magistrate had exercised his discretion to refuse costs wrongly as the defendant’s conduct had not misled the prosecution into thinking the case was stronger than it was.  The judge found that the evidence was such that the prosecution should not have laid the charge.  That was not the situation in this case.

11.  Mr Goodman for the Respondent, put before the court a judgment by Deputy Judge Poon, in a case heard in Chinese, i.e. HCMA 943/2008香港特別行政區訴黃廣渭.  There on similar facts, the judge ruled against the appellant on the question of costs after acquittal.  A copy of this judgment was given to the Appellant.  Whilst it did not support her submission, it may have helped her understand better why the Magistrate refused her costs.

12.  I am satisfied that the discretion was exercised properly and the costs were rightly refused.

13.  I realise that the Appellant, inevitably, will be dissatisfied with this ruling.  However, I can see no justifiable basis on which I can interfere with the Magistrate’s exercise of her discretion.