HKSAR v. SUNG PUI KIT

[English Translation - 英譯本]
CACC 285/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 285 OF 2011

(ON APPEAL FROM HCCC NO. 378 OF 2010)

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BETWEEN

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DECISION ON COSTS

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Hon Yeung VP (giving the Decision of the Court on Costs):

1.  On 10 October 2012, we allowed the appeal of Sung Pui Kit, the Defendant, and set aside his conviction and sentence, and on 30 November 2012 we refused the prosecution’s application for retrial.

2.  At the hearing on 30 November 2012, Mr. Lawrence Lok SC and Mr. Kenneth Wong, Counsel for the Defendant, sought an order by this Court requiring the prosecution to pay the Defendant’s costs of the trial and of the appeal, with certificates to be issued for both counsel.

3.  At that time, neither of the parties filed proper written submissions, nor were they ready to make submissions to this Court on the issue.  We therefore adjourned the issue on costs and requested both parties to file written submissions to the Court.

4.  Now that the parties have by writing explained to this Court their respective positions and arguments on this issue, we will make a decision on of costs on the basis of their written submissions.

5.  Pursuant to section 9 of the Costs in Criminal Cases Ordinance, the Court of Appeal, having allowed the appeal of the appellant and quashed the conviction, may order the prosecution to pay to the defendant the costs of the trial and/or appeal hearing.  However, the Ordinance does not specify the conditions for making a costs order, and the court has to exercise its discretion in making a decision.  The Court of Final Appeal has laid down the following guidelines in Tong Cun Lin v HKSAR [2000] 1 HKLRD 113 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. … 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 … Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted …”

6.  In Ting James Henry v HKSAR (No.2) (2007) 10 HKCFAR 730 at 735, former Chief Justice Li explained the meaning of “the defendant’s conduct” in the context of costs:

“… … The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, … provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.

In our judgment, we stated that the jury had clearly found, as the Court of Appeal also made clear, that the appellant had been dishonest in a way relevant to the counts charged.  The Court of Appeal’s decision to overturn the convictions was not, in any way, inconsistent with the jury having so found. …”

7.  What the defendant’s conduct is should be considered on the basis of the findings of fact made by the jury.

8.  During police investigation, the Defendant said that X had not only given consent but had also asked to rent a hotel room with him.  He said that when he had sexual intercourse with X, X was not drunk and had throughout acted in concert with him and taken the initiative to have sexual intercourse with him.  He reiterated his stance and his case when he gave evidence at trial.

9.  Obviously the jury did not accept the Defendant’s case.  They must have concluded that he had had sexual intercourse with X twice while she was inebriated and completely unconscious.

10.  No matter what the relationship between the Defendant and X used to be, he had sexual intercourse with her twice while she was dead drunk, and on one of the occasions he did not use a condom.  The Defendant’s conduct is disgusting.  His conduct of having sexual intercourse with X twice while she was completely unconscious would also certainly have brought suspicion upon himself.

11.  Furthermore, the Defendant had lied to the investigating police officers and repeated those lies when giving evidence on oath.

12.  At trial, as the Defendant put forward the case that X was sober and had throughout acted in concert with him and took the initiative to have sexual intercourse with him, most of the trial — in particular the evidence of X and the housekeeper, the submissions made by Counsel for the parties and the summing-up made by the Judge to the jury — was taken up by the issue of whether X was intoxicated at the material time.  In fact, the other issues occupied a negligible part of the trial.

13.  Even on appeal, Mr Lok SC still stressed that the Defendant’s main ground of appeal was that X was sober and not unconscious at the material time.  In order to refute the above argument, the prosecution had to make detailed responses in its oral and written submissions, thereby leading to a tremendous wastage in time and public money.

14.  We agree with the submissions of Mr. William Tam, Deputy Director of Public Prosecutions, that the present case could have proceeded on the basis that it involved no more than very simple factual issues, but the position that the Defendant chose to take — which, as it turned out, was not accepted by the jury and has by and large been rejected by this Court — has wasted considerable time of the prosecution and the court and indirectly wasted public money.  The Defendant’s conduct should not be encouraged, and he has to pay for his improper conduct.

15.  It is true that the Defendant had to lodge an appeal before his conviction could be quashed. However, looking at the matter as a whole, we do not agree that we should exercise our discretion and order the prosecution to pay the Defendant’s costs of the trial or of the appeal hearing.

16.  The Defendant’s general conduct in relation to the charge against him and his conduct/position during investigation and at trial are such as to justify the exercise of discretion by the Court to deprive him of all costs.

17.  The Defendant’s application for costs is refused.