LEE CHI CHING and Another v. R.

IN THE COURT OF APPEAL

1993, No. 333
(Criminal)

_______________

___________________

_______________

J U D G M E N T

_______________

1. Mortimer, J.A. (giving the judgment of the Court) This is an application by the two successful appellants for their costs incurred here and below save for where each was legally aided.

2. The history of the case is set out in our judgment - the reasons for which we handed down on 19th August 1994. We do not repeat them save to say that the case had a disastrous history almost from the beginning.

3. The trial began on 14th April 1993. The charge sheet underwent four amendments in the four days which followed. The appellants were tried on a re-re- re-amended charge sheet that contained five charges - two of false accounting, one of fraudulent inducement against each applicant and a joint charge of conspiracy to defraud. By the end of the prosecution case the two charges of false accounting had gone. The prosecution was put to its election between the conspiracy and the fraudulent inducement charges, and chose the fraudulent inducement charges whereupon the judge acquitted of the conspiracy. That left the fraudulent inducement charges set out in the indictment. Unfortunately those charges were duplicitous. It could also be said that they each charged an offence unknown to the law. Unfortunately no one picked up this error. It caused serious difficulty to the judge below because of its imprecise form when she was giving reasons for her verdict.

4. It was only on the second day of the appeal that the matter was raised by the court. It would be right to say that all members of the court were troubled by the way the trial had proceeded without being able, until the second day, to articulate exactly what had gone wrong. So the appeals were allowed. Both appellants apply for costs and this is resisted by the Crown on the basis that the appellants' own conduct brought suspicion on themselves.

5. The principles are well known. They are set out in R. v. Kwok Moon-yan and Lok Man-chiu [1989]2 HKLR 396. The court has a full discretion and a successful appellant is entitled to his costs out of the public revenue unless there are positive reasons for making a different order. Of those generally well-known reasons, the Crown relied upon the one that we have mentioned. The difficulty here is upon what charge did each of the applicants bring suspicion upon himself? Certainly not for the charges upon which they were convicted - each being duplicitous and unknown to the law. It would be a strange situation if these appellants were deprived of their costs when the trial and convictions were on counts which were flawed in the manner found by this Court and conceded by the Crown.

6. There are no grounds, in our view, for depriving these appellants of their costs insofar as they personally incurred them both here and below. Consequently, the order of the Court is that they shall have their costs here and below save those costs which were incurred and paid by the Legal Aid Department.