HKSAR v. LUI KA CHUN

[English Translation― 英譯本]
HCMA 437/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 437 OF 2014

(ON APPEAL FROM KTCC2183 OF 2014)

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REASONS FOR JUDGMENT

1.  The appellant in this case (hereinafter referred to as the defendant) was acquitted after trial of one count of “criminal intimidation” by Deputy Magistrate Ronny Leung at Kwun Tong Magistracy.

2.  The defendant applied for costs, but his application was rejected by the magistrate. The defendant now appeals against that decision. After hearing the appeal, I dismissed it for the reasons given below.

Particulars of the charge

3.  The defendant was charged that on 23 January 2014, outside “Yuen Long Ching Kee Restaurant”, at Tseung Kwan O, he threatened to cause personal injury to Pang Ka Wah (transliteration), with intent to alarm the said Pang Ka Wah, contrary to sections 24(a)(i) and 27 of the Crimes Ordinance, Cap 200.

Facts

4.  The facts are as stated in the magistrate’s Statement of Findings on costs:

“Prosecution’ case”

3. At about 11:20 pm on the day of the offence, the 1^st prosecution witness (PW1) (Mr Pang Ka Wah), who was with the 2^nd prosecution witness (PW2) (Miss Law Hei Yan) (transliteration), drove his private car to somewhere outside a ‘tea’ restaurant at Tseung Kwan O. After pulling up, he noticed that the defendant parked his private car at the nearside rear of his own private car.

4. PW1 suddenly heard a loud bang coming from the nearside rear of his private car. PW1 demanded an apology from the defendant, but he refused. The defendant then walked towards the offside of PW1’s car and hit the window of the driver’s seat for about 20 seconds. In the meantime, the defendant said fiercely for about seven times: ‘Get off the car, beat [X][1] you.’ PW2 also saw the defendant hit the car window, and heard him use abusive language against PW1.

5. PW1 was scared and did not get off the car. The defendant then entered the restaurant with a female friend. After about three minutes, PW1 got off from his car with the intent to take photographs of the defendant’s private car. At that juncture, the defendant stepped out from the restaurant and shouted at PW1: ‘What are you [X] doing? You want me to beat [X] you?’ Subsequently, the police arrived at the scene to make investigations after receiving a complaint.

Defence’s case

6. The defendant elected not to give evidence, nor did he call any defence witnesses. This is his right, I will not draw any adverse inferences against him arising from this.”

The magistrate’s finding of fact

“10. I find PW2’s evidence sensible and reasonable, which is not the least bit overstated or exaggerated. I find PW2 an honest and reliable witness. I would accept her evidence as the whole truth.

11. On the contrary, I find PW1’s evidence doubtful. I cannot accept that the whole of his evidence is true.

12. Having carefully considered all the evidence, I find that the defendant did hit the window of PW1’s car with force six to seven times in his presence at the material time, and that the defendant also used abusive language against PW1 in the process.

13. Although the fact that the defendant hit the window of PW1’s car and kept using abusive language against him would arouse suspicion, I cannot be sure if he did use the word “beat” or words to that effect.

14. I have also considered PW2’s evidence in court that when the defendant was hitting (the car window) and using abusive language against PW1, the windows of the car were all closed. Under such circumstances, I doubt if PW1 could really hear clearly all the words of the abusive language, or could hear from what was said the word “beat” or words to that effect.

15. In considering PW1’s credibility, I have noted that part of PW1’s evidence is inconsistent with PW2’s. PW1 said the defendant had stepped out from the restaurant and again uttered to him the word “beat” or words to that effect. PW2, however, said the police had arrived at the scene when the defendant stepped out from the restaurant again. PW1’s evidence in this regard is obviously different from PW2’s.

16. For the above reasons, I find that there are doubts in this case. As the benefit of the doubt is to be given to the defendant, I find the defendant not guilty as charged.

Reasons for refusing costs

“Reasons for refusing application for costs

17. Having carefully considered all the evidence, I cannot be sure if the defendant has said something to PW1 containing the word “beat” or words to that effect. However, I am sure and find that the defendant did hit the window of PW1’s car with force six to seven times in his presence at the material time, and kept using abusive language against him in the process.

18. I find that by behaving as he did in this case, the defendant has brought suspicion upon himself. Therefore, although the granting of application for costs depends on the outcome of the action, I decide to exercise my discretion to refuse the defendant’s application for costs after taking into account the circumstances mentioned above.”

Grounds of appeal

5.  Mr Paul Wu, counsel for the defendant, put forward a total of three grounds of appeal:

(1) The magistrate could not be sure whether the defendant had uttered to PW1 the word “beat” or threatening words to that effect. The defendant had also denied having uttered those words in his defence. The magistrate had no justification for refusing the defendant’s application for costs.

(2) Even if the defendant had hit the window of PW1’s car with force and kept using abusive language, his conduct was not serious enough to give rise to a suspicion of committing the offence of “criminal intimidation”.

(3) The magistrate immediately heard submissions from the prosecution without asking the defendant about his reasons for applying for costs, and then promptly refused his application for costs without asking him if he had any response.

6.  Mr Wu submitted that the defendant’s conduct at most constituted disorderly conduct, and did not involve criminal intimidation.  Moreover, PW1’s complaint to the police concerned a traffic incident, not the defendant’s criminal intimidation. Hence, the defendant’s conduct was not relevant to the charge of criminal intimidation, nor had the defendant brought suspicion upon himself.

7.  Mr Wu also submitted that the magistrate made his decision without giving the defence any opportunity to refute the prosecution’s case, which was unfair to the defendant.

The respondent’s response

8.  Senior Public Prosecutor Mr Franco Kuan, who represented the respondent, supported the magistrate’s decision. He told me during the trial that PW1’s complaint to the police concerned a traffic incident and the defendant’s act of criminal damage. PW1 only went to the police station a week later and accused the defendant of criminal intimidation. This is not denied by the appellant.

The relevant legal principle

9.  The legal principles on costs are abundantly clear.

10.  Section 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap 492, provides that if a magistrate acquits the defendant after dealing with any offence summarily, he may order that costs be awarded to the defendant. By providing that the magistrate may make the above order, the law confers on the magistrate the discretion to make that order, but it does not lay down the principles regarding the exercise of this discretion by the magistrate.

11.  Before the enactment of Cap 492, costs in criminal cases were dealt with pursuant to section 73A of the now repealed Criminal Procedure Ordinance, Cap 221. The court discussed the relevant principles in the following cases: R v Ng Yui Kin & Others[2], R v Kwok Moon Yan & Another[3].

12.  The relevant principles were affirmed and elaborated by the Court of Final Appeal in Tong Cun Lin v HKSAR[4], and then re-affirmed by the Court in Hui Yiu Sang v HKSAR[5].

13.  The general basic principle is that an acquitted defendant should be awarded costs, unless there are positives reasons to deprive him of such costs.  Positive reasons include whether the defendant has brought suspicion upon himself, whether his conduct has misled the prosecution into thinking that the case against him is stronger than it is, whether there is ample evidence to support a conviction but it is quashed on a technicality, etc.

14.  In Tong Cun Lin, Mr Justice Litton NPJ said this[6]:

“……What then are the governing principles? 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 costsincurredindefendingthosecharges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising thediscretionmust 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. Since, however, thediscretionis being exercised in the context of anacquittal – theavermentsconstituting the charges having been found by thejuryas not amounting to the crimesalleged - it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant's conduct during theinvestigationand at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequentdefence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of thediscretionto deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by thejuryand reflected in the not-guiltyverdict. The person in the best position toweighthose matters is clearly the judge himself.”

15.  Furthermore, generally speaking, unless the trial judge has considered matters that should not have been considered, otherwise, the appellate courts will be slow in interfering with the judge’s exercise of his discretion. (see: Tong Cun Lin p.537 C)

16.  In Ting James Henry, the Court of Final Appeal states that: “It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs.  Such conduct has been described as “most relevant” to the discretionary exercise.  However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise.  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 always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, 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”[7].

Procedures in relation to the application for costs

17.  As to the procedure for the application for costs, after the court has acquitted a defendant, there are four steps that have to be taken (see: Hui Yui Sang p.318 F), they are briefly stated as follows:

(1) The defence shall indicate to the court whether any application for costs will be made.

(2) The prosecution should inform the court whether the application is opposed, and if so, on what grounds. The prosecution should also clearly indicate the factual basis for such grounds.

(3) Both parties should be ready there and then to make submissions to the court in respect of the application. If the matter is to be adjourned, the application should be dealt with as early as possible.

(4) Having heard submissions from the parties, the judge, in giving his reasons for allowing or refusing costs, should state precisely the grounds upon which he exercises his discretion and the facts he relied on in coming to his conclusion.

My considerations

18.  I will first deal with item (3) of the grounds of appeal.

19.  It is true that according to the transcript, the magistrate refused the application for costs without giving the defence any opportunity to make submissions (see the appeal bundle p.22 G-J):

“Magistrate: Any other matters?

Mr Wu: The defence asks for costs, Your Worship.

Magistrate: Fine, [your] position is……

Ms Wong: The prosecution is opposing that, because the defendant’s conduct gives rise to a suspicion.

Magistrate: Fine. Having considered this case, my finding of fact is that the defendant has brought suspicion upon himself by his conduct. I would refuse the application for costs. Any other matters?”

20.  Mr Wu is also the counsel representing the defendant at the trial. He told me that when he heard the magistrate make the decision without first allowing him to make submissions, he was too taken aback to react. Then he considered it futile to ask the magistrate for a review, as he had already made his decision.

21.  I am not sure if the magistrate had mistakenly believed that the defence also accepted the prosecution’s submission that the defendant had brought suspicion upon himself, and due to that reason did not allow the defence to make submissions.

22.  I hope that magistrates can bear in mind the procedures laid down in Hui Yui Sang in handling application for costs, so as ensure that the defence has the opportunity to respond to the grounds of opposition raised by the prosecution.

23.  However, as far as this case is concerned, both the appellant and the respondent agree that as the appeal is a “retrial”, I can reconsider whether the defendant should be deprived of costs.

24.  After considering the facts of this case, I find that when the defendant was asked by PW1 to apologize, he did hit the window of PW1’s car with force and kept using abusive language against PW1. PW1 was inside the car at the material time. In my view, the defendant’s conduct at the material time would certainly intimidate others. I agree with the magistrate’s finding that the defendant has brought suspicion upon himself by behaving as he did at the material time. Mr Wu submitted that PW1 made no complaint of criminal intimidation to the police on the day of the offence, which indicated that the defendant had not brought suspicion upon himself. I disagree with that. According to what PW1 said, he heard a loud bang when the defendant was parking his car. He obviously had no doubt in his mind that the defendant’s car must have rammed into his, hence he demanded the defendant’s apology. PW1 made a complaint to the police in relation to a traffic incident, which is understandable. He nevertheless had mentioned about “criminal damage” to the police, which obviously refers to what the defendant has done to his car. It is immaterial in this case that PW1 did not accuse the defendant of criminal intimidation there and then. What matters is that the defendant’s conduct at the material time would certainly intimidate others, he had therefore brought suspicion upon himself. Under such circumstances, I would in exercising my discretion adopt the same approach as the magistrate by not awarding the defendant any costs.

25.  For the reasons given above, I would dismiss this appeal against the costs order.

Translated by the Judgment Translation Unit of the Judiciary and vetted  by Mr P.Y. Lo, Barrister-at-law