HKSAR v. ECHENE MATHIAS (also known as ECHENE MATHIAS HUBERT MARIE) AND ANOTHER

DCCC 1029/2012

[2021] HKDC 816

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1029 OF 2012

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RULING ON COSTS

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1.  D2 was acquitted on 27 January 2021 following this court’s finding that she has no case to answer for the Charge.

2.  D1 was acquitted on 7 April 2021 following this court’s finding him not guilty of the Charge.

3.  Mr Liu, on behalf of D1, submitted by way of his supplemental submissions that the ambit of D1’s costs application are three-folds:-

(1)  D1’s legal fees and expenses (including payment to the defence expert in March 2013) incurred after D1’s arrest on 2 June 2012 until he left Hong Kong on 1 September 2013.

(2)  D1’s legal fees incurred in Indonesia when he was incarcerated there.

(3)  D1’s legal fees and expenses, including court attendances by Counsel or private barrister after his extradition back to Hong Kong on 12 September 2019 until legal aid was granted on 19 June 2020.

4.  D2 applied for costs with certificate for two counsel from 14 December 2020 until her acquittal on 27 January 2021.

5.  This case goes all the way back to year 2012.  A succinct summary of the relevant events was given by His Honour Judge W K Kwok in His Honour’s reasons for decision when dealing with the prosecution’s application to try D2 in absentia {[2020] HKDC 876}.

6.  I adopt and recite paras 21 (a)-(l), 22, 23 and 24 in the said decision by His Honour Judge W K Kwok:-

“21. It suffices for the present purpose to recite the following relevant events:

(a) D1 and D2 were arrested on 2 June 2012.

(b) On 27 November 2012, D1 and D2 pleaded not guilty in the District Court, and their trial was fixed to be heard on 14 February 2013 with 20 days reserved.

(c) On 8 February 2013, i.e. less than one week before trial, D1 and D2 jointly applied for an adjournment of the trial on the ground that their expert was in the course of preparing an accountant report, and that a defence witness was not available. The application was granted with the trial re-fixed to be heard on 10 October 2013 with 25 days reserved. In this application for adjournment, D1 and D2 were represented by Mr. Daniel Marash S.C., together with Mr. Derek Chan of Counsel upon the instructions of Messrs. Haldanes.

(d) For all other hearings in the District Court prior to 10 October 2013, including hearings on 27 November 2012, 14 December 2012, 15 January 2013, 25 June 2013 and 3 October 2013, D1 and D2 were also represented by the same firm of solicitors, i.e. Messrs. Haldanes.

(e) D1 and D2 were bound by their bail terms to surrender to court on 10 October 2013. Each of them had deposited HK$1 million cash as bail money. Mr. Ferrand had undertaken the duties of a surety and deposited HK$500,000 cash for each of D1 and D2 to fortify his undertaking to ensure D1 and D2 to surrender to court on 10 October 2013. D1 and D2 were once not allowed to leave Hong Kong, but the travel prohibition was eventually removed from their bail terms.

(f) Before 10 October 2013, D1 last entered Hong Kong on 1 September 2013 and left on the same day.

(g) Before 10 October 2013, D2 last entered Hong Kong on 28 September 2013, and left on 7 October 2013. During her stay in Hong Kong, Mrs. Ferrand met D2 almost every day. On 7 October 2013, Mrs. Ferrand accompanied D2 to consult a doctor to deal with D2’s sleeping problem and to see Mr. Tom Fyfe of Messrs. Simmons & Simmons, Solicitors, to discuss the imminent trial on 7 October 2013. Mrs. Ferrand last spoke to D2 on the phone around 7 p.m. on 7 October 2013. D2 however left Hong Kong without prior notification to Mr. or Mrs. Ferrand.

(h) About 3 p.m. on 8 October 2013, Mr. Ferrand learned from his friend in Paris that D2 was back in Paris. He later managed to speak to D2 over the phone. D2 told him that she was scared and frightened by the predicament that she was facing in Hong Kong. Mr. Ferrand also managed to speak to D2’s mother. He asked D2’s mother to persuade D2 to return to Hong Kong.

(i) Around 4:03 p.m. on 8 October 2013, D2 sent a text message to Mrs. Ferrand to tender her apology. D2 claimed that she would like to fight and clear her name but it had become impossible because D1 was not present. She said that if Mrs. Ferrand were her, Mrs. Ferrand would have made the same decision as she.

(j) Mrs. Ferrand sent text messages to D2 on 8 October 2019 at 10:59 p.m. and on 9 October 2013 at 3:48 p.m. to urge D2 to return to Hong Kong and not to live the life of a fugitive.

(k) D2 replied by text message on 10 October 2013 at 3:25 a.m. saying that she had to disappoint Mrs. Ferrand.

(l) On 10 October 2013, both D1 and D2 did not attend the trial, but they were legally represented. Mr. Derek Chan of Counsel instructed by Messrs. Oldham, Li & Nie, Solicitors, appeared for D2 on limited instructions to apply for an adjournment of the trial to January 2014. Mr. Derek Chan produced to court a letter dated 9 October 2013 written by D2 who claimed in the letter that she was returning to France to take care of her 4 years old daughter who was then suffering from acute tonsillitis, and had to undergo a surgery upon the advice of a specialized doctor. D2 also stated in the letter that she intended to return to Hong Kong on or around 15 January 2014, and that she had made herself available by phone for the police to contact her whenever needed. Miss Liza Yip of Counsel instructed by Messrs. Wong & Associates, Solicitors, appeared for D1 also with limited instructions to apply for an adjournment of the trial. His Honour Judge Johnny Chan refused the defendants’ applications for adjournment and issued warrants of arrest against them. The learned judge also ordered the cash bail of each defendant (totalling HK$2 millions) to be forfeited.

22. It is clear beyond doubt that D2 knew full well that she had to appear in court on 10 October 2013 when the trial against her and D1 would commence. She was present in court on 8 February 2013 when the trial was re-fixed to be heard on 10 October 2013 after her application for adjournment of the trial due to start on 14 February 2013 was granted. It is also clear from the affidavit of Mrs. Ferrand that she had been reminding D2 to come to Hong Kong to attend her trial on 10 October 2013. When D2 was in Hong Kong between 28 September and 7 October 2013, Mrs. Ferrand stayed with her almost every day, and accompanied her when she consulted Mr. Tom Fyfe of Messrs. Simons & Simmons for preparation of the imminent trial. In addition, D2 actually instructed Mr. Derek Chan of Counsel and Messrs. Oldham, Lie & Nie, Solicitors, to appear for her on 10 October 2013 to apply for adjournment of her trial.

23. D2’s absence in court on 10 October 2013 is again beyond dispute. Her absence was clearly voluntary because she had made a deliberate decision to depart from Hong Kong on 7 October 2013 at night. In the text messages between D2 and Mrs. Ferrand, D2 sought to explain why she had left Hong Kong. She said she felt that it would be unfair for her to shoulder all the responsibilities when D1 would not stand for his trial. It is noted that her explanation of her absence to Mrs. Ferrand did not tally with what she told the court in her letter dated 9 October 2013 when she said she had to return to France to take care of her 4 years old daughter who was at that time suffering from acute tonsillitis and had to receive a surgery. It is also noted that while D2 said that she felt very apologetic to Mrs. Ferrand for making her decision to leave Hong Kong, she chose not to listen to Mrs. Ferrand who advised her that nobody could live an entire life as a fugitive and urged her to return.

24. It is also beyond doubt that from 10 October 2013 onwards, D2 has no initiative whatsoever to return to Hong Kong to stand for her trial.  In her letter dated 9 October 2013, D2 claimed that she intended to return to Hong Kong on or around 15 January 2014.  She did not honour that promise. It can also be safely inferred that she was well aware that her application for adjournment of her trial failed and that the court had issued a warrant of arrest against her because her legal representatives must have the means to contact D2 on 10 October 2013 even if D2 was outside Hong Kong, and they must have informed her of the decisions made by His Honour Judge Johnny Chan after the hearing.  Since 10 October 2013, D2 has not made any attempt to contact either the police or the court, not to mention that she has never surrendered herself.”

7.  With regard to D1’s claim of cost incurred as a result of his extradition proceedings in Indonesia, this court is of the view that such cost stemmed from D1’s deliberate choice to leave the jurisdiction.  I therefore see no ground that he be entitled to such cost.

8.  In respect of the 2 separate legal teams engaged by D1 and D2 respectively on 10 October 2013 where both appearing on limited instructions to apply for an adjournment.  Such was clearly a direct result of D1 and D2’s respective choice to be absent from the trial.

9.  I see no reason that they should be entitled to recover cost insofar as the 10 October 2013 hearing was concerned.

10.  In fact both Mr Liu & Mr Sherry fairly accepted that both D1 and D2 should not be entitled to the cost re 10 October 2013.

11.  In respect of the applications made by D2’s legal team on 23 November 2020 (Mr Benson Tsoi + Dexter Leung of counsel) and on 3 December 2020 (Mr Franco Kwan of counsel), they were both originated from D2’s deliberate choice to leave the jurisdiction and not facing the trial.

12.  In the premises.  I do not see any ground that D2 should be entitled to recover cost for such applications.

13.  Apart from the aforesaid exceptions, I am satisfied that D1 and D2 are entitled to their respective cost following their acquittals.

14.  With regard to D2’s application for certificate of 2 counsel, I do not find this is an appropriate case to grant such certificate.  I therefore decline the same.

Order

15.  I therefore give the following Order.

For D1

16.  Cost to D1 to be taxed if not agreed except:-

(i)  cost related and incidental to D1’s application made on 10 October 2013; and

(ii)  costs related and incidental to D1’s extradition proceedings in Indonesia.

For D2

17.  Cost to D2 to be taxed if not agreed except:-

(i)  costs related and incidental to D2’s application made on 10 October 2013;

(ii)  D2’s application made on 23 November 2020; and

(iii)  D2’s application made on 3 December 2020.