HKSAR v. CHAN CHI KEUNG

[English Translation - 英譯本]

HCCC 241/2023

[2025] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 241 OF 2023

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REASONS FOR RULING ON APPLICATION FOR COSTS

Background

1.  The Defendant, CHAN Chi-keung, was charged with one count of “Rape”. He pleaded not guilty to the charge and stood trial before me. After trial, the jury were not able to reach a majority verdict as required by law. The Court eventually discharged the jury. The Prosecution subsequently came to the decision to offer no evidence against the Defendant. The Defendant was acquitted and released forthwith on 20 February 2025.

2.  The Defence made an application for costs of the trial. The Prosecution objected to the application.

3.  I adjourned the case for written submission from both sides.

4.  When the hearing resumed on 18 March 2025, I allowed the Defence’s application for costs of this trial[1]. I refused the Defence’s request for granting a certificate for two counsel. These are my reasons.

Prosecution case

5.  The Defence submitted that the evidence involved in this case was not lengthy. The counsel for the Defence relied on what was stated in their “halfway submission”, in particular the observations on X’s evidence, which I essentially adopt.

6.  The Prosecution called a total of four witnesses:

PW1 — X, the complainant;

PW2 — Z, the male friend with whom X went to the bar earlier on the material day;

PW3 — Y, X’s then-boyfriend; and

PW4 — the police officer who took the video-recorded interview from the Defendant.

7.  Besides, both parties signed two sets of Admitted Facts, covering areas of communication records on mobile phones, and footage and screenshots of CCTVs, etc.

8.  The key evidence of the present case came from X.

9.  The Defence suggested that the quality of X’s testimony was remarkably weak.

X’s account and objective evidence incompatible with each other

10.  X’s account was straightforward - after returning to Zentral from DC, she became unconscious. When she came round the following morning, X was already on the Defendant’s bed and saw that the Defendant was having sexual acts with her.[2]  X dashed into the toilet at the Defendant’s home at once before losing her consciousness again. It was not until she noticed her boyfriend was calling that she left in haste. She was not fully conscious throughout the entire process of going downstairs, getting on a ride, travelling and finally reaching home.

11.  There were multiple inconsistencies between X’s own evidence and objective evidence:

11.1  According to X, she did not recall whether she and the Defendant had bodily contacts/embraced each other/held hands and so on in Zentral and/or DC. The objective evidence from the footage (Exhibits D1 and D2) and screenshots (Exhibit D3) of the CCTVs at Zentral and DC showed the aforementioned contacts did take place between X and the Defendant.

11.2  Despite X’s mentioning that she was almost unconscious the entire time at the Defendant’s home, multiple screenshots (all of which were in fact among the documents already known to the Prosecution at an early stage and were exhibits contained in the committal bundle submitted by the Prosecution) showed that as early as sometime after 6 o’clock in the morning, X kept using different applications on the mobile phone already – there were both outgoing calls on WhatsApp and calls to landline telephones, all initiated with X’s mobile phone. Besides, some of them, were put through and there were even conversations.

11.3  According to X, when she was leaving the Defendant’s home by taxi, her mind remained fogged during the ride. Objective evidence, however, showed that she was actually on the phone with Z, which even lasted 32 minutes in total.

X’s behaviour utterly incompatible with X’s claim of being raped

12.  X’s post-event behaviour in the present case was surprising:

12.1  After being allegedly raped, X searched and located her own mobile phone in the room and brought it with her into the toilet.

12.2  After being allegedly raped, X went to the toilet, however, with no intent of leaving the Defendant’s residence at all.

12.3  After being allegedly raped, and even after she managed to make her way out of the flat, X did not make any report to the police or call for help at all. She agreed that she trusted her boyfriend and that she could have made a phone call to her boyfriend but she did not do so.

12.4  What was more, after having “made her way to safety”, she decided to return to the Defendant’s residence and even left with the Defendant.

12.5  The first WhatsApp message X sent after having left was to reach her male friend, Z (instead of her boyfriend, Y). However, the message was not about calling for rescue but asking him (Z) to come over to “go to bed with” her (X)[3].

13.  The Defence also set out the incompatibility between X’s account and the testimony given by her boyfriend, Y.

Defence Case

14.  After I found that there was a case to answer against the Defendant, the Defendant elected not to give evidence nor call any witnesses. As seen from the Defendant’s video-recorded interview and the line of cross-examination of X, the Defendant contended that X consented to the intercourse.

Jury’s verdict

15.  The case went through a 9-day trial. On 12 December 2024, after retiring for deliberations for approximately 8 hours, the jury could not reach a valid verdict. I hence discharged the jury.

No evidence offered

16.  The Prosecution then offered no evidence against the Defendant, and the Defendant was acquitted.

Relevant legal principles

17.  Since the jury could not reach a valid verdict, and the Prosecution then offered no evidence against the Defendant, the Defendant was acquitted. The case fell within the circumstances under section 4 of the Cost in Criminal Cases Ordinance, Cap. 492, Laws of Hong Kong (hereinafter referred to as the Costs Ordinance). I had the jurisdiction to consider and make a ruling on the application. (See HKSAR v Chen Keen and Others)[4]

18.  Section 4 as mentioned above provides:

“Defence costs if not tried

Where a defendant is not tried for an offence for which he has been indicted or committed for trial, the District Court or the Court of First Instance may order that costs be awarded to the defendant.”

19.  While section 15 of the Costs Ordinance lists the general principles with respect to costs, the Ordinance was silent on the way the court should exercise its discretion.

20.  Generally speaking, as conceded by both parties, an acquitted defendant is entitled to an award of costs out of public revenue, unless there were positive reasons for deviating from this principle. Positive reasons exist where: the defendant’s own conduct has brought suspicion on himself and such conduct has misled the prosecution into thinking that the case against him is stronger than it really is. In such circumstances the defendant shall bear his own costs. Besides, where an acquittal is due to a technicality, the defendant shall likewise bear his own costs.

Parties’ positions

21.  Has the Defendant’s own conduct brought suspicion on himself and has misled the Prosecution into thinking that the case against him is stronger than it really is? The Prosecution position was “yes” while the Defence “no”.

Prosecution’s position

22.  The Prosecution, in its written submission, set out the following facts of the case that suggested the Defendant having brought suspicion upon himself:

“10. First, at 3 am on the material day, X was drunk and made a phone call to her friend, Z, hoping he would take her home. Later, after Z located X, who was so drunk that she passed out, the Defendant arrived and the three of them eventually took a taxi together. Whether it was Z or the Defendant who suggested going to his residence in Tsing Yi was in dispute at the trial. According to Z, he could not recall certain matters that took place at the moment he saw X and the Defendant on a pavement in Lan Kwai Fong, such as whether he discussed with the Defendant how to escort X, whether X lived in So Kwun Wat, and so on. However, after getting into the taxi, it was the Defendant who instructed the taxi driver to go to Tuen Mun after making a stop in Tsing Yi. Z was certain about the Defendant not telling him that given X’s residence being closer to Z’s, it would be better to send X to Z’s home, and about Z not saying it was not appropriate (for X) to go to his home.

11. Second, when the taxi arrived in Tsing Yi, the Defendant alighted and borrowed a hand trolley from a security guard for transferring X to his residence. In fact, the two males, namely the Defendant and Z, were definitely able to help X up to go back to the Defendant’s residence, but the Defendant decided to use a hand trolley. This showed that the Defendant was very eager to take X home; the use of hand trolley could not only move X to the Defendant’s residence sooner, but also saved Z from entering his home and seeing what was inside the home.

12. As admitted by the Defendant in the video-recorded interview, he and X were ordinary friends at the material times. He also admitted that he was once interested in X but X turned him down. Taking into account factors such as the relationship between the Defendant and X, the juncture being small hours already, and the Defendant’s having attended the party earlier on coupled with his consumption of alcohol, both of the aforementioned episodes suggested that the Defendant was highly eager to send X to his own residence, and that the level of initiative taken far exceeded that of an ordinary person.

13.  The Prosecution submitted that the present case was a rape case that rested on X’s word against Defendant’s. When considering whether or not the Defendant’s conduct brought suspicion upon himself, regard should be given to the fact that, by nature of the case, there was hardly any objective evidence to support the commission of the criminal act other than X’s allegation. Therefore, the above series of events showed how the Defendant brought suspicion upon himself, and when coupled with X’s testimony, misled the Prosecution into thinking that the case against him was stronger than it really was.”

23.  Regarding the exceptional circumstances raised by the Defence which I will address later (in paragraph 26), the Prosecution was of the view that the evidence that was in favour of the Defence did not serve as evidence leading to the Defendant’s acquittal.

24.  As to the Defence submission that the evidence long in the Prosecution’s possession disclosed the Defendant’s grounds or line of defence, such that the Defendant could not be said to have misled or caused the Prosecution to think that the case against him was stronger than it was, the Prosecution characterized it as a far-fetched inference. The purported line of defence was, in substance, nothing more than the Defendant’s exculpatory statement given during his video-recorded interview. The present case was obviously one that came down to X’s account against the Defendant’s – the case hinged on whether or not X consented to or was capable of consenting to the intercourse with the Defendant. In the Prosecution’s view, the Defendant’s conduct and X’s statement sufficed to prefer a charge against the Defendant.

Defence position

25.  The Defence relied on the criticism stated in its “halfway submission” against X’s testimony.[5]

26.  The Defence argued that there were special circumstances in the present case that merited the court’s attention: the evidence that was favourable to the Defence in the present case was in fact all along part of the Prosecution evidence (for instance, the CCTV footage of the two bars, the call records in X’s mobile phone, WhatsApp messages with Y and Z on X’s mobile phone, etc.). This was a matter, it was contended, already noted by the Court during the submission of no case to answer. Under such circumstances, the Prosecution/the police were indeed duty-bound to evaluate the evidence carefully prior to any decision to press any charges.

27.  Regarding the Defendant’s conduct that the Prosecution alleged brought suspicion upon the Defendant, the Defence responded as follows:

27.1  According to the oral evidence (of her friend, Z) and the objective evidence, X was seriously intoxicated when she was in Lan Kwai Fong and was not able to state her own address. Since neither the Defendant nor Z knew X’s actual address, escorting X home was not possible. Given the Defendant and Z not being acquainted, there were only three options before the Defendant – (i) “escorting X to the Defendant’s home”; (ii) “escorting X to Z’s home” and (iii) “leaving X unattended on the street in Lan Kwai Fong”. At the time, since Z had lost his wallet, sending X to a hotel was not viable either. It could hardly be said that the Defendant had brought suspicion upon himself by escorting X to his own home.

27.2  For X was so hammered, it was likewise hard to say that the Defendant had brought suspicion upon himself when he had to look for other moving equipment to help move X.

27.3  By escorting X to his own home, the Defendant was not, as the Prosecution put it, very eager and taking the initiative far exceeding that of an ordinary person. On the contrary, the Court should consider the actual relationship between the two persons (instead of the one between ordinary acquaintances as in X’s bare assertion). From the CCTV footage of the two bars (or clubs according to X) on that evening, the relationship between the two was seen unusually intimate. The two of them were absolutely not ordinary acquaintances as claimed by X. Taking into account the interaction and bodily contacts between the two, it could not be said that the Defendant overstepped their intimate boundaries by escorting X to his own home.

My consideration

28.  Having considered the submissions by both parties and the testimony and evidence at trial, I am of the view that, although the Defendant instructed the taxi driver to first head to the Defendant’s residence in Tsing Yi and transferred X to his home with a hand trolley, his conduct, under all the circumstances at the time, did not amount to having brought suspicion upon himself or misled the Prosecution into thinking that the case against him was stronger than it really was.

29.  X and the Defendant knew each other. X was invited by the Defendant to the bar for alcoholic drinks with him and others. While X made a phone call to reach Z before getting drunk, Z did not know X’s residential address. Also, Z had lost his wallet and did not have a penny with him. Under such circumstances, the Defendant could not be criticized for bringing X to his home.

30.  X was definitely so plastered that she ended up sprawling face-down on the ground after getting out of the taxi. Given the state X was in, unless lifting her up, it was not quite possible to help X up walking. The Defendant’s conduct of borrowing a hand trolley from the security guard to transfer X back home did not suggest that he was “very eager and taking the initiative far exceeding that of an ordinary person”.

31.  As the Defence had pointed out in its halfway submission, X’s testimony did not tally with other objective and undisputed evidence (such as the CCTV images and her mobile phone’s data). During the halfway submission, I concluded that such discrepancies were matters that were properly for the jury’s determination. At the end of the day X’s evidence failed to satisfy the jury after deliberations.

32.  Putting aside whether, upon full examination of the evidence – in particular, by contrasting the CCTV images and the data on X’s phone with X’s testimony – the Prosecution should have pursued the charge, the fact remained that no valid verdict was returned by the jury after trial, following which the Prosecution offered no evidence against the Defendant. I find no basis for a conclusion that the Defendant brought suspicion upon himself or misled the Prosecution into thinking that the prosecution case was stronger than it was.

33.  For the reasons set out above, I found that the Defendant should be entitled to costs of the trial.

Certificate for two counsel

Defence position

34.  The Defence submitted that the volume of evidence covered in the present case was considerable, with the most time-consuming task being the Defence having to view multiple CCTV cameras at great length, on top of capturing the relevant footage/screenshots for making accurate reference to the prosecution witnesses in the most time-saving manner. The charge in this case was a very serious one, which upon conviction was punishable by an extremely lengthy imprisonment. Having taken into account these factors, the Defence asked the Court to consider the grant of a certificate for two counsel.

Prosecution position

35.  In respect of the CCTV footage and screenshots, the Prosecution submitted that it was very common in modern criminal proceedings for there to be reliance on at least one CCTV footage. The tasks of viewing footage and taking relevant screenshots were basic case preparation. The footage in question was not overly extensive, and Mr. So, a competent counsel, could have reasonably managed it. The CCTV footage of both the inside of the bar and downstairs of the Defendant’s residence appeared to be in overwhelming amount/duration, but the footage relevant to the alleged incident was of moderate duration. With regards to the CCTV of the Defendant’s residence, the Prosecution had prepared the footage and screenshots, and had hence limited the time frame. The remaining footage in the bar was not long, spanning roughly between 23:45 and approximately 03:00. Furthermore, the case management for the present case was already conducted on 17 June 2024, and it was not until 2 December that the trial commenced. Therefore, there was ample time for the Defence to prepare for the trial.

36.  In relation to the point on the gravity of the charge, the Prosecution submitted that quite a number of offences, in comparison, attracted sentences longer than that typically given for “rape”. Had a serious charge and the possible long imprisonment justified the engagement of more than one defence counsel, there would not be a sufficient number of counsel in Hong Kong to meet the demand in criminal litigation.

My consideration

37.  The nature of the present case was not complex and did not involve difficult or novel issues or points of law.

38.  While I accept that Mr. Hui, the junior counsel, charged a lower fee than Mr. So and that his involvement in preparation work of reviewing the CCTV footage would, on its face, represent a more favourable course for the party bearing the costs, the CCTV footage in question could not be said to be “astronomical” in amount. In the circumstances of the present case, it could have been adequately dealt with by a single counsel.

39.  Accordingly, I do not find it appropriate to grant a certificate for two counsel in the present case. This application is therefore dismissed.

Ruling

40.  Costs of the trial be to the Defendant, to be taxed by a Master if not agreed.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.