CHENJUEXUE v. HKSAR

HCAL 34/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 34 OF 2005

____________

____________

_______________

J U D G M E N T

_______________

I.   Introduction

1.  Chen and Ng were accused of wounding with intent.  Following trial before Judge Longley in the District Court, they were acquitted.  They sought their costs from the prosecution.  But the judge refused the application.  The judge said that this was because "the conduct of the accused brought suspicion on themselves". 

2.  Chen and Ng now seek a review of the judge's refusal.  They say that there was nothing about their behaviour at the time of arrest or shortly before which could have brought suspicion on themselves.

II.   Background

3.  There was no dispute at trial that the victim, Lai Wai Keung, had been wounded.  The question was whether Chen and Ng had done the wounding.

4.  On what happened, the judge accepted the evidence of Lau Chi Yuen, a public light bus driver parked near where the wounding took place.  The gist of Lau's evidence is summarised in paragraphs 4 to 9 below.

5.  Chen and Ng were walking along Hip Wo Street at night.  Chen suddenly struck the face of a man standing under the awning of a shop along the street.  The man fell down an alleyway. Chen and Ng followed.

6.  Shortly after, Chen and Ng emerged from the alley, one of them holding a pole. 

7.  A gang of 6 or 7 men then rushed out from a side street.  They attacked Chen and Ng.  The latter used the pole to keep the gang at bay.  The 6 to 7 men consequently grabbed stools and crates from a nearby market to press their attack.

8.  The police eventually arrived on the scene and broke up the fight.  The gang dispersed.  But Chen and Ng remained with the police. 

9.  While the police were questioning Chen and Ng, the man whom they had hit came out of the alley into which he had fallen. He did not approach the police, but disappeared into the darkness of another alley.

10.  Lai was the prosecution's main witness. 

11.  He claimed to have been hit by Chen, while reading a newspaper outside a store.  Lai alleged that, attempting to escape Chen, he was grabbed by Ng.  According to Lai, Chen and Ng beat him up before they rushed off to Hip Wo Street.

12.  The judge found Lai's evidence hard to believe.  The judge thought that it likely that Lai was the man whom Lau had seen being hit by Chen and who had slipped into the darkness of an alley rather than approach the police.  But the judge could not be sure that this was so, especially since Lai was implicitly denying Lau's account of events.

13.  When the police found Chen and Ng, they were drunk.  Neither attempted to leave the scene of the fight.  Both had injuries.

14.  Neither Chan nor Ng gave evidence.

15.  The prosecution suggested that, on Lau's evidence alone, the judge could find Chen and Ng guilty of assaulting an unknown person.  But the judge did not think that this was an available option.  The trial had focussed on an assault on Lai, not anyone else.  Further, it was dark under the awning. It was unclear what events might have preceded Chen lashing out at the man beneath the awning.

16.  Judge Longley consequently acquitted Chen and Ng.

III.   Discussion

17.  In deciding whether to award costs upon an acquittal, the Court may consider a defendant's conduct during investigation and trial.  For example, it is relevant to evaluate how a defendant responds to the police and whether he gives consistent answers to inquiries.  See Tong Cui Lin v. HKSAR [2000] 1 HKLRD 114 (CFA), at 117H.

18.  Mr. Davies (appearing for Chen and Ng) surmises that drunken behaviour must have been the reason that the judge had for his decision to refuse costs. 

19.  Nonetheless, while admitting that Chen and Ng were drunk at the time, Mr. Davies submits that intoxication was not a good reason to deny costs.  Being drunk and shouting while drunk would not lead a reasonable person to suppose that an accused had committed a crime.

20.  Mr. Davies submits that Chen and Ng had cooperated fully with the police.  They did not run away.  On the contrary, Mr. Davies says that they gave frank and full accounts of the attack upon themselves.

21.  Mr. Davies concludes that the judge wrongly exercised his discretion by refusing costs to Chen and Ng.

22.  I disagree for 3 reasons.

23.  First, it is not the case that Chen and Ng gave frank accounts of their conduct on the night in question. 

24.  Ng claimed to be so drunk as not to remember what happened.

25.  Chen, on the other hand, made no mention in his statements of hitting some one before the gang fight, even though (according to Lau's evidence which the judge accepted) Chen had struck the person under the awning.

26.  Second, the judge must have been aware of contradictions in the evidence of Chen and Ng.  This is because the prosecution submitted that costs should be denied as Chen and Ng had only been acquitted due to inconsistencies in Lai's account.  From Lau's testimony, it was plain (the prosecution submitted) that Chen and Ng had acted suspiciously and wrongly. 

27.  Given what transpired at the trial and given the prosecution's case on costs, the judge would have been fully conscious that, on the night of the fight, Chen and Ng had behaved in a manner which cried for explanation.  There were contradictions and lacunae in the evidence of Chen and Ng when contrasted with Lau's version of events.

28.  Third, Mr. Davies suggests that the Court was influenced by the drunkenness of Chen and Ng, largely because in the course of submissions the judge had alluded to the pair having been drunk and disorderly.  The judge had then said that "[i]t may be that that could be said to have brought suspicion on themselves".

29.  I do not think that much can be inferred from the judge's stray remark in the course of argument.  A judge is entitled to put propositions to counsel to test whether they merit further consideration.  The mere fact that a proposition is broached does not mean that the judge accepts it.

30.  Accordingly, taking all circumstances into account, I think that the judge had ample justification to deny costs.  I cannot say that he was acting irrationally.

IV.   Conclusion

31.  The application for judicial review fails.  It is dismissed.  I shall hear the parties on the costs of this hearing.