HKSAR v. JONATHAN DOVE AND ANOTHER

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 785 OF 1997

(on appeal from ESC 2091 of 1997)

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J U D G M E N T

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1. The appellants were acquitted of the joint charge of wounding. They were acquitted after trial. Their application for costs was rejected by the magistrate and they now appeal against such a decision.

2. There is no dispute that the victim, Mr John Clayton, was wounded quite seriously at a Wan Chai bar in the early hours on 10 May 1997. The issue before the magistrate was whether the appellants were involved in wounding him. According to the victim, prior to his being wounded he had a scuffle with the two appellants. He was then struck on his face by one of them with a bottle. He said the attack was completely unprovoked. The learned magistrate concluded that the victim had not been completely truthful. He was of the view that it was more than a fight between the appellants and the victim. He concluded that other people could have been involved. He also could not exclude the possibility that the victim was injured by flying bottles or flying ashtrays during the scuffle.

3. The magistrate's decision to acquit the appellants rests mainly, or to some extent, on the evidence of a defence witness, Mr Pearce. Mr Pearce suggested that the scuffle was started by other people and the appellants just became swept up in it. The learned magistrate took the view that if the defence had bothered to give a statement of Mr Pearce to the police or to the prosecution the case might not be proceeded with. He was of the view that the failure to do so caused suspicion to remain pointed at the appellants.

4. Section 31C of the Costs in Criminal Cases Ordinance empowers a magistrate to order costs in favour of a defendant after acquittal. The Ordinance does not stipulate in what circumstances costs in favour of an acquitted defendant should be made, but guidelines as to the award of costs in favour of an acquitted defendant have been well-established. In R v KWOK Mun-yan and LOK Man-chiu, [1989] 2 HKLR 396, the court have laid down the following principles:

"(a) the exercise of the power to award costs is in the unfettered discretion of the court, and falls to be exercised in the light of the circumstances of each case, but the normal practice is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order;

(b) positive reasons for not making such an order would exist - (i) where the appellant's own conduct has brought suspicion on himself and his misled the prosecution into thinking that a case against him is stronger than it is; or (ii) whether there is ample evidence to support a conviction that is quashed on a technicality which has no merit;

(c) the court must exercise separately its discretion in respect of the costs in the Court of Appeal, the court of trial and the Magistrate's court, having regard to the circumstances obtaining in each court."

5. On the question of bringing suspicion and misleading the prosecution, Silk J, as he then was, had the following to say at page 401, and I quote:

"On the first: positive reasons for not making such an order would be ..."

and then he said:

"... we do not view this as meaning that there must be both a bringing of suspicion and a misleading before a successful appellant would 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."

6. In a cautioned statement given by the 1st appellant shortly after the incident he said, having left the toilet with the 2nd appellant, a transvestite had said something to the 2nd appellant, then a man smacked the 2nd appellant and he himself ended up fighting. He said the 2nd appellant lost his shirt and he also got his shirt ripped. He did not describe the incident in any greater detail. In fact, he gave the impression that at the material time he was not able to say or to remember more than what he had described to the police. He also said there were three to five people in the opposite group, and the 2nd appellant at that time was very angry -- was pretty angry.

7. The 2nd appellant said in his cautioned statement that after he left the toilet he got hit and he then hit back, and all he could remember was a big bloke rolling over. He said he did not have a clue who hit him and why. He said he lost his T-shirt but he never started anything. Neither of the appellants appear to have given a fuller account of the incident and they had made no attempt to supplement what they told the police in the cautioned statements at any subsequent stage until they appeared in court and gave evidence.

8. It is clear that the appellants were charged because of what the victim alleged against them, and perhaps to some extent what they said in their cautioned statements pertaining to their involvement in this scuffle. In my view, the conduct of the appellants had brought suspicion against themselves, suspicion they had made no attempt to refute at any subsequent stage.

9. The further matter of not producing the defence witness, the statement of Mr Pearce, to describe to the police what, according to him, happened at the material time also justifies the conclusion that the appellants have misled the prosecution into thinking the case against them is stronger than it is.

10. The issue is not whether this court would have exercised the discretion in favour or against the appellants. Sitting in an appellate capacity, the only issue that I have to decide is whether there was evidence before the magistrate for him to conclude that the appellants had, in fact, brought suspicions upon themselves, and/or misled the prosecution into thinking that the case against them is stronger than it is. In my view there are clear evidence pointing to that aspect, and the learned magistrate was entitled to take those matters into consideration. In my view, the magistrate's decision not to exercise his discretion to award costs in favour of the appellants is correct. There is evidence before him to enable him to reach such a decision.

11. In the circumstances, the appeal against the decision of the magistrate must be dismissed.