LI KWOK KAY v. HKSAR

HCAL65/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.65 OF 2013

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J U D G M E N T

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1.  The applicant was acquitted by HHJ Tallentire[1] of 4 counts of indecent assault[2] after a trial in the District Court in December 2012. The learned judge refused the application for costs by the applicant. His Honour was of the view that the applicant brought suspicion on himself and misled the prosecution into thinking that their case was stronger than it turned out to be.

2.  Leave for judicial review was granted by DHCJ Wright on 12 April 2013.  The substantive hearing was heard on 16 July 2014.

3.  The applicant relied on the following grounds during the hearing:

a. The learned judge took into account irrelevant matters.

b. There was no positive reason for refusing costs.

c. The learned judge erred in applying the reasons for refusing costs in the 1^st charge to the other charges.

d. The refusal of costs was at variance with the applicant’s acquittal upon the evidence.

Background

4.  The applicant was a police officer posted to Kowloon City Magistrates’ Courts as a gate guard.  The victim was a cleaner there.  The victim was 32 years old but her intelligence was equivalent to 9 years and 5 months only.  She was unable to lead an independent life.[3]

5.  For the first count, the prosecution alleged that on 22 November 2011, the applicant invited the victim for lunch.  The restaurant was full and the applicant subsequently went to the home of the victim.  While they were alone there, the applicant lifted up the shirt of the victim and touched her breasts.

6.  The other counts occurred at the prisoner loading area of Kowloon City Magistrates’ Courts.  The prosecution alleged that between 23 November and 9 December 2011, there were three different occasions of indecent assault.  The applicant kissed the victim and pulled her hand to touch his penis on one occasion (2^nd count).  He touched her breasts from behind on another occasion (3^rd count).  He put his hands inside the back trousers pockets of the victim and squeezed her buttock on another occasion (4^th count).[4]

7.  The learned judge found that the victim did not understand simple questions couched in basic terms by counsel.  She was unable to grasp what she was called upon to answer.  The learned judge concluded that the victim was an honest witness.  She had certainly not told deliberate lies either to the court nor to the police, there were however many dangers of her simply being mistaken as to what occurred.  The learned judge dismissed all counts as there were massive doubts in the evidence despite he was highly suspicious about the applicant’s conduct.[5]

8.  In refusing costs to the applicant, the learned judge stressed that the conduct of the applicant was very suspicious.  The applicant asked the victim for her mobile phone number and dated her for lunch. He even went to her home knowing that no family member was there.  The learned judge concluded that these acts were the commencement of the subsequent series of alleged indecent assault.  They were highly suspicious and misled the prosecution to conclude their case was stronger than it turned out to be.[6]

Legal principle on award of costs

9.  Sections 5 and 6 of the Costs in Criminal Proceedings Ordinance empower a judge the discretion to award costs to a defendant on acquittal of all or some of the charges.  These provisions must be read in conjunction with the authorities which discussed about the factors relevant to the exercise of this discretion.  The principle is as follows.

10.  A defendant should normally be compensated for the costs in defending the charges on acquittal unless there are positive reasons for not doing so.  It is a positive reason that a defendant has brought suspicion on himself and has misled the prosecution into thinking their case is stronger than it is.  In exercising this discretion, a judge may consider the defendant’s conduct at the time of the offence, during the investigation and during the trial.  This include conduct which formed part of the setting for the charges laid against him.  A judge should also bear in mind the strength of the evidence against the defendant and the circumstances under which the defendant is acquitted.  However, the refusal of costs should not be an indirect way of punishing the defendant.  A judge should not take a view of the facts contrary to the basis of the acquittal.[7]

11.  Counsel for the applicant argued that the test is twofold.  The applicant had brought suspicion and also misled the prosecution.  The respondent argued that it should be disjunctive—either brought suspicion or misled the prosecution.  While this application would not turn on this issue, I like to clarify it for the sake of completeness.

12.  The respondent relied on the comment of Silk VP, in The Queen v Kwok Moon Yan [1989] 2 HKLR 396 at 401B—E:

“On the first: positive reasons for not making such an order would be (1) where the appellant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. We do not view this as meaning that there must be both a bringing of suspicion and a misleading before a successful appellant will be deprived of his costs. If it is the view of the court that a man has brought suspicion on himself, or having done that, he has also misled the prosecution, either by the very bringing of that suspicion, or some other matter, into thinking the case against him is stronger than it is then these, either separately or combined, are factors which lie for the consideration of the Court in the exercise of its discretion.” (Emphasis added)

13.  In my view, Silk VP meant that a defendant might mislead the prosecution either by bringing suspicion on himself, or by some other matter, or a combination of both.  Under those scenarios, a court might refuse costs on his acquittal.  In all scenarios, the prosecution must be misled.  I agree with Wright DHCJ in HKSAR v Dildar RIZVIthat it is a twofold test—the defendant had brought suspicion and also misled the prosecution.[8]

14.  In my judgment, the learned judge identified the correct principle in his reasons for refusing costs to the applicant.

The applicant’s conduct

15.  In exercising the discretion in this case, two aspects are of particular relevance.  Firstly whether the applicant should have noticed that the victim was mentally retarded.  Secondly what were the circumstances upon which the applicant went to the victim’s home?

The victim’s intelligence

16.  The applicant maintained in his video recorded interview that the victim had no intelligence problem, he described her as ‘very direct and very innocent’[9]. The following is the relevant exchange during the interview:

“702. B[10] : Right? Did you notice if there was any difference between Cheang Pek-sun and ordinary people?

703 C[11] : Quiet, seldom talk.

704 B : What else?

705 C : You say a sentence and she says a sentence in reply.

706 B : Hm, what else?

707 C : No more.

708 B : Did you notice she had intelligence problem?

709 C : No.

…

796 B : But, can you tell by her look she is mentally retarded—having a problem with IQ?

797 C : I—probably she has nothing wrong.

798 B : That is just what you think?

799 C : Huh.

800 B : Right? You think she has nothing wrong?

801 C : During the conversations between she and I, she answered exactly what I asked. She wouldn’t give an irrelevant answer.”

17.  I have also watched the video recorded evidence-in-chief of the victim.  I am convinced that she displayed difficulties in various areas: she could not tell the difference between truth and lie until she was assisted by an example[12]; she described the male sexual organ as ‘urethra’[13]; she often gave incoherent answers which were out of context[14]; she had problems with the chronology of events and perception of time[15].

18.  The learned judge had similar impression when he said ‘Although she clearly found it difficult on occasions to assimilate and to reply to very basic questions, I have no doubt whatsoever that she spoke what she perceived to be the truth to the very best of her ability.’[16]

19.  Later in the Reasons for verdict, the learned judge further commented ‘To a large degree, the time spent in giving evidence was due to the fact she did not understand what on the face of it appeared to be simple questions couched in basic terms by counsel.’[17]

20.  In my view, anyone talking to the victim would have no difficulty to conclude that she was sub-normal in her intelligence.  The applicant was an experienced police constable, it was impossible for him to miss this intelligence issue given their contact at work during the six months before the 1^st count.  The applicant obviously was not forthcoming in the interview.  Though the learned judge did not specifically mention this in his reasons for refusing costs, I am sure this issue was alive in his mind.

Going up to the victim’s home

21.  The applicant explained under caution the circumstances of going to the victim’s home on the date of the 1^st count as follows:

a. He and the victim were ordinary friends for 6 months before the alleged offences.  He asked the victim for her phone number but did not give his number to her.  He did not tell the victim his name.

b. He had called the victim several times before the day of the 1^st count.  He invited the victim for lunch that morning by phone.  He never invited other cleaners.  He invited the victim as he met her every day at work.  He treated the victim for lunch as she help to clean the prisoner loading area.  He used a pet phrase—hey have a meal later on.

c. He was in a hurry as he got one hour only.

d. He took a taxi to Oi Man Estate.  The victim came to meet him at the taxi stand.

e. They went to a fast food restaurant but there was no vacant seat.

f. The victim invited him to go to her home to take a look at a big fish.  He did not ask the victim if there was anyone at her home.

g. When asked why not wait for seats, he said they only went to look at the big fish for a very short period of time probably several minutes.

h. They spent 5-10 minutes at the victim’s home.  The victim’s parents returned at one stage.  He greeted her parents.

i. He then took the victim back to the same fast food restaurant for lunch.  There was still no vacant seat.  The victim then took him to another restaurant where they finally had lunch.

22.  The learned judge was not satisfied with the explanation of the applicant.  He commented in the Reasons for verdict:[18]

“I have to tell you, defendant, that what I view as highly suspicious are the events of 22 November 2011. They are not in my opinion adequately nor convincingly explained in your video-recorded interview to any acceptable level. Why would a man, a police officer, of at least full mental capacity, not only obtain X’s phone number, invite her to lunch, and when this appears thwarted, pursue her to her residential estate, there placing yourself in a compromising situation by going to her flat whilst her family are absent?”

23.  In fact, in refusing costs, the learned judge expressly found that the applicant had full knowledge that no family member was present at the victim’s home at that time.[19]

24.  On the day of the 1^st count, the circumstances according to the applicant were wholly inexplicable.  Initially, there was no seat at the fast food restaurant.  Instead of waiting for seats or going to another restaurant direct, he went to the victim’s home to take a look at the big fish.  Allegedly this was on the invitation of the victim.  When he and the victim returned later after watching the big fish, there was still no seat.  They then go to a nearby restaurant for lunch.

25.  This sequence of events must be assessed in the light of other background facts.  The applicant and the victim were ordinary friends.  The victim did not know his phone number and name.  The applicant was in a hurry and had only one hour for lunch.  He had to take a taxi to Oi Man Estate for lunch as the victim had finished work and returned home.  There was no special reason for inviting the victim for lunch.  It arose casually according to the applicant.

26.  Given all this background, coupled with the positive finding that the applicant knew there was no family member at the victim’s home, I agree with the learned judge that it was highly suspicious that the applicant had an ulterior motive to take advantage of the victim.[20]

27.  While her video recorded evidence was by no means straight forward, the victim had described in detail the events on 22 November 2011—the date of the 1^st count.  As it was basically a one-against-one situation, the credibility of the applicant and the victim was an important issue.  In my view, the two aspects discussed above cast serious doubt on the credibility of the applicant.  It had misled the prosecution in relation to the 1^st count.

28.  The learned judge had taken into consideration all relevant factors.  Nowhere in this application indicates that the prosecution was motivated by other reasons in laying the 1^st charge against the applicant.

29.  I agree with the learned judge that the applicant brought suspicion on himself and there were positive reasons for not awarding costs to the applicant in relation to the 1^st count.

Should the applicant be deprived of costs in other counts?

30.  The other counts concern alleged indecent assault at the prisoners loading area on three other occasions after the 1^st count.  The victim had mentioned distinct incidents in her video recorded evidence.  Her recollection was by no means easy to follow especially on aspects such as the sequence of events and the time of the offence.  The applicant denied the allegation in his video recorded interview.  These offences were one-against-one situation.  The credibility of the victim and the applicant would be the main issue.

31.  In order to establish these counts, the relationship of the parties and their previous encounters would certainly be an important issue.  The two aspects discussed above are therefore relevant.  With similar reasoning as discussed above, the applicant had brought suspicion on himself and misled the prosecution.  The learned judge was entitled to consider the circumstances of the 1^st count in relation to the other counts during the application for costs.

Is the refusal of costs inconsistent with the basis of the acquittal?

32.  The learned judge did find the allegation doubtful given the high potential of activity in the prisoner loading area.  He further stressed that much of what the victim said was irreconcilable with the overall facts.  He pointed out that the disabilities of the victim would not relieve the prosecution the burden of proving the case beyond all reasonable doubt.  He finally concluded:

“To this end, the task has become enormously difficult for the reasons I have indicated and given, and the lack of anything to corroborate X’s account in a supportive, material or meaningful way. Additionally, we also had X’s own admissions of bad memory or at least difficulties in remembering things. This was clear from the number of times in her evidence she said she could not remember.”[21]

33.  The learned judge was not satisfied beyond all reasonable doubt on the evidence of the victim despite he found the applicant highly suspicious.  This does not contradict his finding that the applicant had brought suspicion on himself as discussed above.

Conclusion

34.  In my judgment, the learned judge was correct.  The applicant brought suspicion on himself.  There were positive reasons to refuse costs on all counts.  I dismiss the application for judicial review.

35.  I further make an order nisi that costs of this application be to the respondent.  This order shall become absolute 14 days from the date of this judgment unless any of the parties applies by summons for variation.