HKSAR v. WONG TAT KI

[English Translation – 英譯本]

HCMA 186/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPEAL AGAINST COSTS ORDER

MAGISTRACY APPEAL NO. 186 OF 2005

(ON APPEAL FROM TMCC NO. 1168 OF 2004)

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BETWEEN

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JUDGMENT

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1. The Appellant was charged with one count of “claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151 of the Laws of Hong Kong. He was acquitted after trial. He applied for costs through his Counsel, but the magistrate refused to make a costs order. The Appellant now appeals against such refusal.

2. According to the magistrate’s Statement of Findings, the prosecution’s case was that, at the material time, PW1 and one Mr Choi were operating a clinic for pets. On the day of the offence, the Appellant and Mr Choi took more than 10 dogs to the clinic for vaccination. They then left the clinic but returned soon afterwards. The Appellant rebuked PW1 for taking away all the vaccination records and, using foul language, claimed to be a member of a triad society, threatened that PW1 would “not have any luck” and asked PW1 to “be careful”. Under caution, the Appellant denied the charge. He neither testified nor called any witness at trial.

3. In his verbal judgment, the magistrate stated that he was unable to fully rely on PW1’s evidence, in particular, PW1 said during examination-in-chief that Mr Choi was not present when the Appellant claimed to be a member of a triad society, but upon cross-examination PW1 changed his stance and admitted the witness statement that he had previously given the police, namely that Mr Choi was present when the Appellant claimed to be a member of a triad society. During cross-examination, PW1 said that the Appellant returned to the clinic and rebuked PW1, in the course of which Mr Choi also returned. The magistrate considered that PW1 had, for some unknown reason, changed his evidence (Appeal Bundle, page 86).

4. In his Statement of Findings, having stated his belief that the Appellant did on the day of the offence say something to PW1 which scared him, the magistrate stated that the Appellant had to be acquitted because there were doubts about PW1’s evidence. The magistrate also stated that the Appellant’s conduct on the day of the offence brought suspicion on himself and caused the prosecution to think that there was sufficient evidence in support of the charge against him.

5. Put briefly, the Perfected Grounds of Appeal prepared by Counsel for the Appellant state that the magistrate wrongly failed to exercise his discretion to allow the application for costs by the Appellant who had been acquitted. In his submissions, Counsel for the Appellant pointed out that the Appellant was acquitted because the magistrate harboured doubts about PW1’s evidence and accordingly ruled that such evidence could not be relied on. It was submitted that, under normal circumstances, a magistrate should exercise his discretion to award costs to an acquitted defendant unless there were positive reasons for not making such a costs order; and that in the present case, the magistrate had wrongly refused to award costs to the Appellant on the ground that his conduct had brought suspicion upon himself.

6. Counsel further stressed that, immediately following his arrest, the Appellant had provided the police with a cautioned statement in which he denied the charge against him. At trial, by not testifying or calling any witness, the Appellant exercised his legal right to defend the charge.

7. The Respondent agreed with the submissions of Counsel for the Appellant and considered that the magistrate had wrongly refused to make a costs order. The case of HKSAR v. Cheung Chi Wing and Another, HCMA 146/2005 was cited in that connection.

8. Section 3 of the Costs in Criminal Cases Ordinance, Cap. 492 of the Laws of Hong Kong provides that, where a magistrate dealing with a summary offence acquits the defendant, the magistrate may order that costs be awarded to the defendant.

9. In the Court of Final Appeal case of HKSAR v. Tong Cun Lin [2000] 1 HKLRD 113, Litton PJ had this to say (at 117):

… When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. 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 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. …

10. Generally speaking, a defendant should not be awarded costs where his own conduct has brought suspicion on himself, or where he has led the prosecution into believing that the case against him is stronger than it is, or where he has been acquitted on technical grounds.

11. In the case cited by the Respondent, the appellants were acquitted after trial on the ground that there were doubts about the identification evidence. The magistrate stated in the Reasons for Verdict that he acquitted the appellants not because he disbelieved PW1’s evidence but only because he gave the appellants the benefit of doubt. The appellate court held that the case hinged on the correctness of the identification and the distinction pointed out by the magistrate simply did not exist. Pang J had the following to say:

… However in this case the only evidence against the defendants was that of the correctness of identification by the prosecution witness and I can see no distinction on the reasons of acquittal based on rejecting the prosecution witness’s evidence or giving the defendants the benefit of doubt. The doubt that was given to the appellants must have arisen from the poor quality of the prosecution witness’s evidence.

In my view, the circumstances of that case were different from those of the present case, and the two cases cannot be mentioned in the same breath.

12. In the present case, the magistrate made it clear that he believed the Appellant had at the material time returned to PW1’s clinic, banged on the table and rebuked PW1 with foul language. It was because of the inconsistency of PW1’s evidence on the question of whether Mr Choi was present when the Appellant claimed to be a triad member that the magistrate concluded that the charge against the Appellant had not been established beyond reasonable doubt. In other words, although the magistrate was not sure whether the words of rebuke formed the substance of the charge against the Appellant, he was sure PW1 had been rebuked in such a way that he felt his personal safety was under threat and dared not go to work from the following day onwards. It was because of the inconsistency of PW1’s evidence on the question of whether Mr Choi was present when the Appellant made the claim which constituted the alleged offence that the magistrate concluded that the charge against the Appellant had not been established beyond reasonable doubt. However, the magistrate did point out that the Appellant’s acts and conduct had brought suspicion on himself.

13. In fact, in HKSAR v. Li Siu Tong & Others, HCMA 547/2000, Hartmann J delved deeply into the meaning of an act bringing suspicion on oneself. The learned judge agreed that, if a judge is to refuse to make a costs order:

… there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the Appellants behaved badly but their conduct brought suspicion upon themselves in respect of their alleged criminal conduct.

The learned judge also pointed out that:

… What amounts to ‘relevant’ conduct will differ according to the circumstances of each and every case. While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent the magistrate from considering the Appellants’ actions directly surrounding the alleged criminal conduct.

14. And in the present case, according to the magistrate’s verdict, the Appellant’s acts of returning to the clinic, banging on the table, using foul language and rebuking PW1 were actions directly surrounding the alleged criminal conduct.

15. As a general rule, the appellate court will not interfere with a magistrate’s order granting a costs order or refusing to do so. The magistrate has a wide discretion on matters concerning costs. Having directly heard and received evidence at trial, the magistrate is in the best position to determine the factors which assist him in making a decision on costs. Unless it is obvious that the magistrate was ultra vires in exercising his discretion, there is no basis or reason for interference by the appellate court. I do not consider that the magistrate in the present case had wrongly exercised his discretion so as to justify interference by this court. The appeal is accordingly dismissed.