HKSAR v. LAM CHIU FONG AND OTHERS

HCMA1148/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1148 OF 2007

(ON APPEAL FROM KTCC 5896/2007)

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J U D G M E N T

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1. This is an appeal against an order made by a magistrate refusing to award costs to the four appellants when a charge of unlawful assembly was withdrawn against them.  Ten men in all had been prosecuted for unlawful assembly.  The prosecution arose from the fact that two blocks of flats came on the market for sale in Wong Tai Sin and the local triad turned out in force to intimidate and keep away decoration contractors who did not enjoy their protection. 

2. The experienced magistrate well knew that the usual practice was that an order for costs would be made in favour of a defendant when the charge was withdrawn against him unless one of the usual and well-known exceptions to that practice applied. 

3. The magistrate denied the appellants their costs because she held that they had brought suspicion upon themselves.  The reason she made that finding was expressed in this way:

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There was more than sufficient evidence to arrest and detain these men. The history and numbers of persons involved over the few days did necessitate the police to conduct further enquiries and obtain legal advice. The prosecution informed the court that the victim and the police undercover officers witnessed these four appellants' roles; to swear at the men they surrounded whilst others made the threats and claims. This was taken from their witness statements. The 4th appellant told the police in his record of interview that he appeared at the scene after being summonsed to assist by a male. He assisted this male to threaten these victims. He knew the purpose of threatening these men was to scare them away from this area.

The appellants were an integral, active part of the gang and not innocent bystanders. I was sure they were not just merely present at the scene. These four men put themselves in a position where they were arrested as part of a gang that surrounded and intimidated the victims."

4. The magistrate made her order on 5 November 2007.  It was on 30 November 2007 that the Court of Final Appeal handed down their reasons in the case of Qamar Sheraz v HKSAR, FACC5/2007, which held that it was not permissible to deny an acquitted defendant his costs on the basis that facts established that he was guilty of the crime charged.  The same evidence could not trouble the defendant twice in respect of costs and the presumption of innocence was engaged. 

5. Applying the reasoning of that case to these facts, the four appellants enjoy the presumption of innocence and the facts that founded the charges against them cannot therefore be taken as an indication of guilt.  The wrong of which they were accused cannot, by itself, be used as the foundation to deny them their costs.  This would be the more so where, as here, the prosecution withdraw the charge and the assertions of wrongdoing are therefore untested, as opposed to the situation where there has been a trial and basic facts have been found. 

6. No fact or matter exists in this case beyond the facts upon which the charge of unlawful assembly was based which could be said to justify the finding that an appellant's conduct brought suspicion upon himself.  If what they had done had led to a trial and acquittal, their conduct could not have been taken against them in order to deprive them of their costs.  The same must therefore apply where the prosecution do not proceed to trial but withdraw the charge.  In both situations, the presumption of innocence is engaged. 

7. Put another way, the conduct of an appellant which is said to have brought suspicion upon himself has to be something outside the ambit of that which attracts the presumption of innocence. 

8. Qamar Sheraz decides that if a judge on appeal is sure a man committed the crime in question, the man’s acquittal at first instance by a magistrate prevents that finding being used as a basis to deprive him of his costs as, without a conviction, the presumption of innocence is engaged.  Conduct indicating guilt therefore, that amounts to something less than proof of guilt, even though blameworthy, obviously falls to the same argument. 

9. The conduct identified by the magistrate here as attracting suspicion was either the commission of the crime charged or something falling short of it. 

10. It follows that this appeal must be allowed.  I emphasise that the order was made before the decision in Qamar Sheraz and, accordingly, there is no criticism of the magistrate who was doing no more than many generations of magistrates have done in the past in such situations which is to identify reprehensible conduct which landed the defendant in court and which was of a nature that made it inappropriate to give him his costs.

7. Appellants to have their costs to be taxed if not agreed.