HKSAR v. PINDER SINGH

 DCCC 188/2024

			[2026] HKDC 862

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 188 OF 2024

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HKSAR

v

Pinder Singh

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Before:	Deputy District Judge K K Leung

Date:	8 May 2026

Present:	Mr Tsoi Shun Cheong, Counsel on fiat, for HKSAR 

	Mr Azan Aziz Marwah and Mr Nicklaus Pannu-Yuon, instructed by Mohnani & Associates, for the defendant

Offence:	Assisting the passage within Hong Kong of unauthorized entrants (協助未獲授權進境者在香港境內的旅程)

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RULING ON COSTS

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BACKGROUND

The defendant was acquitted of a charge of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115.

The facts of the case and reasons of my decision were set out in the Reasons for Verdict.

Upon defendant’s acquittal, the defence made an application for costs and applied for a certificate for two counsel.

The prosecution objected to the defence application.

DEFENCE APPLICATION

 Mr Azan Aziz Marwah and Mr Nicklaus Pannu-Yuon were privately engaged legal representatives of the defendant in trial.

It was not disputed that defendant is a form 8 recognizance holder. He came to Hong Kong on 31 August 2023.  He was granted recognizance on 26 September 2023.  At the material time, he resided at Sun Tin Dei Street, Yau Ma Tei, Kowloon.

It was the defence submission that the prosecution have failed to show any positive reasons for which the defendant should have his costs denied.

PROSECUTION’S SUBMISSION

The prosecution argued that the defendant’s own conduct in this case has brought suspicion on himself and no award should be made.

CONSIDERATION

The Law

The defence asked for costs under section 5 of the Costs in Criminal Cases Ordinance, Cap 492, which provides: 

“Where after trial in the District Court or the Court of First Instance, a defendant is acquitted, the District Court or the Court of First Instance may order that costs be awarded to the defendant.”

As a general rule, costs should follow the event unless there are positive reasons to deprive the defendant of such costs.

I have considered the principles laid down in the authorities cited by both parties and also, Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 and Ting James Henry v HKSAR (No 2)(2007) 10 HKCFAR 730. 

I have also considered the submissions made by both parties.

In the reasons for verdict, I found that in this case, the prosecution showed insufficient evidence to find that defendant knew the passengers in the taxi were unauthorized entrants. The allegation of the prosecution against the defendant therefore could not be the only possible conclusion of the case. The prosecution could not prove the case beyond reasonable doubt. Nevertheless, in considering the act of the defendant I found him to be suspicious.

In this case, the defendant chose to answer questions during the investigation. The record of interview of the defendant conducted in the presence of the interpreter was adduced.  It was agreed that the interview was voluntarily and accurately made. The defendant also relied upon as his defence.

In considering the manner in which a defendant responded to questions during the investigation, I have born in mind the remarks emphasized in Hui Yui Sang v HKSAR (2006) 9 HKCFAR 208 submitted by the defence.

As the facts shown, the defendant was found in the target taxi conducted in the snap check or road block by the police officers in operation in the vicinity of Shek Mun Kap, Tung Chung.  The second prosecution witness testified that there were only around two taxi passed by when the snap check was conducting at the time around 9 am. It could also be found that the location where the defendant waited for the taxi was a place where public traffic is minimal. This could be concluded from the undisputed fact that the taxi was hired by defendant by prior booking through phone message and the request he received from the males that they could not find a taxi. 

Against this background, it was not disputed that upon search, three other males were found together with the defendant inside the target taxi.  Two of the males were of Indian ethnicity and one was of Vietnamese ethnicity. All of them were also arrested by the police at the scene after investigation.  In the record of interview, when the defendant was asked where he got the taxi and whether he knew the three males in the taxi, he answered:

“Q6: Where did you get in the taxi? Where was your destination?

A6: I don’t remember.  I was going to Mongkok.

Q7: Do you know other three males in the same taxi?

A7: No, I just met them on the road where I was waiting for the taxi and they came to me and said they could not find a taxi and asked if I help them to get them a ride.  I don’t know whether they are legal or illegal in Hong Kong.  Neither they have paid me for this ride nor I took any money from them for the ride.”

Though it was found that the defendant at the material time might not have the duty to ask for the identities of the three males, indeed it came to his mind of whether the three males remained in Hong Kong legally or not. He should have aware of the danger of providing assistance to the three unknown males whom their status he came to query in his mind. It should also be noted that the defendant is a form 8 recognizance holder in Hong Kong.  The importance of the right of remaining was not unknown to him.  

I also accepted the prosecution submission that given the defendant was a form 8 recognizance holder and was not permitted to work in Hong Kong, there was no indication that he made any enquiry about the three males’ destination and settlement of the fare.  It should also be noted that two of the males spoke the same language as the defendant i.e. Punjabi.

Having considered all the circumstances, I found the defendant had brought suspicious upon himself. I exercise my discretion to refuse the defence application for costs.

Certificate for two Counsel

Though I refused the costs application, the defence also applied for a Certificate for two Counsel by making the costs application. The reasons for the application were also made in the written submission.

It was submitted by the defence that the legal representative of the defendant was instructed on the matter due to his familiarity with the Punjabi language and the junior counsel was urgently instructed due to his fluency in Chinese to assist in the late disclosure of the untranslated material. Counsels’ multilingual proficiency proved advantageous in the proceedings and professional competence. Yet, should the defence have encountered difficulties due to urgent and unforeseen matter, the court would have allowed time for their resolution.

In this case, if the defendant had been convicted, he would have faced a sentence of imprisonment.  Nevertheless in this case, the facts and issue were not complex. The prosecution called three prosecution witnesses.  All of them were police constables.  The cross examination of all the witnesses were not lengthy. There were no more than 5 questions asked by the defence in cross examination of the third prosecution witness. As for the documents and exhibits concerned, there were three documentary exhibits adduced in total, namely the admitted facts and one set of record of interview of the defendant from the prosecution and one set of documents concerning the “Non-stamping immigration clearance arrangement” from the defence.  

Having considered the nature and complexity of the case, I do not find the award of a Certificate for two Counsel to be appropriate in the present case.

	( K K Leung )

	Deputy District Judge