HKSAR v. WONG MAN HO

HCMA323/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.323 OF 2001

(ON APPEAL FROM TWCC 700028 OF 2001)

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J U D G M E N T

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1. The appellant was acquitted on 9 March 2001 of being a member of a triad society. Having been acquitted, the appellant applied for his costs and the application was refused.

2. The appellant had been arrested in respect of the sale of obscene video compact discs and after his arrest, had gone with his father to the Anti-triad Squad of Eastern Division to give information to the police concerning the triad involvement in the sale of those video compact discs. During the course of the inquiry, the appellant was said to have revealed himself to be a member of a triad society. He was then referred to Tsuen Wan District for further inquiry as to his triad involvement. He was interviewed under caution and was subsequently charged for the offence of being a member of a triad society.

3. When the matter came before the court, evidence was heard from the PW1, who was a police constable and at the end of his evidence, the prosecution offered no further evidence and the appellant was acquitted. An application was made for costs which was refused and in his ruling, the magistrate held that the appellant had, by his own conduct, brought suspicion upon himself and that the decision to prosecute was correct. He, therefore, exercised his discretion not to award costs.

4. In R. v. Ng Yui Kin and Others [1983] HKLR 356, Penlington J held that the discretion to award costs in favour of a successful defendant should be exercised unless there were positive reasons for not making such an order such as: (a) the conduct of the accused had brought suspicion on himself and had misled the prosecution into thinking that the case against him is stronger than it turned out to be; and (b) there was ample evidence to support a conviction but the accused was acquitted on a technicality which had no merit.

5. In the matter before me, I must consider the evidence which was before the magistrate. It is clear that the statements of the prosecutor, by way of opening explanation to the magistrate and any material such as a set of brief facts which were before him other than by agreement under section 65C, would not form part of the body of evidence which he was entitled to consider. I have the benefit of a transcript of the hearing provided by the solicitors for the appellant and the evidence itself consists of that given by DPC13418 (Cheng Yau Kuen).

6. In chief that officer said that on 27 September 1999, he was on duty at the Anti-triad Squad of Eastern Division when he interviewed the appellant in connection with his possible triad involvement. He said, as a result of the investigation, the case was referred to Tsuen Wan District Police for further inquiries and identified the appellant. That was the sum total of his evidence.

7. In cross-examination, Mr Pickavant who appears before me and in the court below, established that the appellant and his father volunteered to come in to the police station to make an complaint concerning triads and that they had undertaken to give a witness statement. The officer went on to say :

"An then, later on, the defendant and his father reported to the inspector of the vice division that the defendant was involuntarily admitted -- kick in a triad society to sell obscene compact discs."

8. There was no further evidence before the magistrate from that witness prior to the prosecution offering no further evidence and the appellant being acquitted.

9. In his ruling, the magistrate held that the defendant, the appellant before me, revealed himself to be a member of a triad society in a statement given to DPC13418. Whilst that was the effect of what the prosecutor said he intended to prove the evidence itself, as far as it went, was no more than a hearsay statement by the witness that the appellant and his father had told somebody else that the appellant was involuntarily admitted or kicked into the triad society to sell obscene compact discs. There was no evidence before the magistrate of an admission to PW1 by the appellant.

10. Secondly, the magistrate referred to a second inquiry made of the appellant in the Tsuen Wan District in which the interview record consisting of an admission of being a triad society member was obtained from the appellant before me. No such evidence was before the magistrate that evidence could only have come from the hearsay statement of PW1 or by an inference to be drawn from the opening of the prosecutor. Later in his findings, the magistrate said this :

"It was right and proper for the police to have the Defendant referred to another team of police for further investigation of his triad involvement. An interview record under caution and consisting an admission of being a triad society member was then taken by the police officer of the Tsuen Wan District. As a result, a charge of 'Being a member of a triad society' has duly preferred against this Defendant under these circumstances. In my view, the Defendant has by his own conduct brought suspicion upon himself and the decision to prosecute was correct."

11. There was no admissible evidence of any of these matters before the magistrate. In my view, he has relied upon material which was neither placed before him as evidence nor supported in anyway by a testing by the defence. I accept that after a full trial where evidence has been properly tested, a magistrate would be entitled to take an overall view of the whole of the evidence and draw conclusions from it. But here, there was no admissible evidence either as to an admission by the appellant, by way of a record of interview or by way of a witness statement. The magistrate has used in the exercise of his discretion the unproved opening of the prosecutor and material which does not appear anywhere in the transcript. I cannot be satisfied that this is a proper exercise of his discretion. The appeal is allowed and the appellant will have his costs here and in the court below.