HKSAR v. KO TSZ HONG

[English Translation - 英譯本]
HCMA 405/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 405 OF 2014

(ON APPEAL FROM TWCC 302 of 2014)

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REASONS FOR JUDGMENT

1.  The appellant (hereinafter referred to as D2), and another man (D1) were jointly charged with one count of “burglary”, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap 210, Laws of Hong Kong. The particulars of offence are: ”[D1] and [D2] are charged that on the 13^th day of October, 2013, at Store F03, 1/F, Modern Terminals Limited, Container Port Road, Tsing Yi, New Territories, in Hong Kong, having entered as a trespasser a part of a building known as Store F03, 1/F, Modern Terminals Limited you did steal 6,717 no. of mobile phones and 4,800 no. of spare parts for mobile phones (total value HK$1,820,139) therein.

2.  On 22 May 2014, before Mr Joseph To, Principal Magistrate of Tsuen Wan Magistracy, the prosecution applied to withdraw the charge. The application was accepted by Mr To. The Duty Lawyer representing D2 then applied for costs. The hearing was adjourned to 5 June 2014. D2’s application for costs was refused by Mr To on 5 June 2014. He now appeals against the order in question.

3.  I allowed the appeal after hearing and ordered that costs of the lower court hearing and those of the appeal be to D2, to be taxed by a master if the parties cannot agree on the amount. My reasons are as below:

The prosecution case

4.  Mr To set out the prosecution case in his statement of findings:

“The prosecution case

3. D1 and D2 were both staff members of a goods transportation company.

4. D2 asked the employer to allow him to use a light goods vehicle of the company between 3am and 5am of 13 October 2013 to transport a batch of goods. In response to D2’s request, the employer instructed D1 to drive a company vehicle to transport the goods in question.

5. Acting in accordance with the instruction, D1 went to the godown in question and removed mobile phones and circuit boards valued over HK$1,800,000.

6. On 15 October 2013, the owner of the goods found the goods missing. A report was made to the police. The police discovered the identity of D1 based on a video record and arrested him on 23 January 2014. Further police enquiries revealed that D2 was also involved in the matter. D2 was arrested on the following day. Under caution, in the company of his legal representative, he refused to answer any question.

7. The police had not been able to locate the whereabouts of the lost property.”

5.  The reasons advanced by the defence in support of the application for costs and the findings of Mr To are as follows:

“Reasons advanced by the defence in support of the application for costs:

8. The main reasons the defence advanced to support the application for costs are as follows:

1. The prosecution case did not support the finding that a prima facie case had been made out;

2. The prosecution applied to withdraw the charge;

3. The defendant was only exercising his right to remain silent under caution. This could not be a ground to support the argument that he brought suspicion upon himself.

9. In my view, as far as the facts of the case are concerned, D2’s involvement in the present case was considerable. He made the request to the employer for the use of a company vehicle to transport goods, and the lost property was in the end removed by means of that goods vehicle. In my view, the facts clearly support the finding that a prima facie case has been made out.

10. I do not accept the defence argument the prosecution’s decision to withdraw the charge must be the result of their failure to establish a prima facie case or the certainty that the defendant did not bring any suspicion upon himself.

11. The defence relied on HKSAR v Lam Chiu Fong (HCMA 5896/2007).  Paragraphs 5 and 6 of the judgment of the case are as follows:

5. Applying the reasoning of that case to these facts, the four appellants enjoy the presumption of innocence and 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.

12.In my view, in dealing with an application for costs, the court can consider the overall conduct of the defendant during the investigation and the hearing, as well as the facts presented by the prosecution to decide whether or not he had brought suspicion on himself. In this respect, the following proposition can be found in paragraphs 27 and 28 of Cheng Kam Kuen and HKSAR (HCAL 92/2004):

My conclusion

27. Both on first principles and authorities, I totally agree that the right of silence is a fundamental part of the common law and the criminal law (I include here the absence of any affirmative duty of disclosure of the defence prior to trial – indeed an accused may choose to keep silent even at trial and simply put the prosecution to proof of its case). The right must be jealously guarded. It cannot be taken away or watered down, whether in form or in content, and whether directly or indirectly.  This has been recently reaffirmed by the Court of Appeal in Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349.

28. However, this does not mean that under no circumstances can the refusal or failure to disclose one’s defence or proffer on explanation at the investigation stage, done in the exercise of the right of silence, be taken into account by the court in considering costs following an acquittal. The Court of Appeal in Kwok Moon-yan, supra, has said so in terms. The Australian case have both explained why and demonstrated in what circumstances this may be done. Quite apart from the fact that Kwok Moon-yan as a decision of the Court of Appeal is binding on this Court, I agree with the conclusion that has been reached in these authorities.

13. In my view, in the application for costs in the present case, the question of whether any weight could be attached to the fact that the defendant remained silent under caution must be considered in all the circumstances of the matter, in particular the prosecution case.

14. In my view, the incident in question can by no means be an ordinary commercial arrangement at all. That D2 asked for permission to use a company goods vehicle to convey goods in the early hours of the morning and that the stolen goods were later driven away on board of the goods vehicle was no doubt not a coincidence but clearly the result of some sophisticated planning.

15. Most importantly, D2 was the only person in the whole case who knew the identity of the consignor and the information related thereto. For example, under what circumstances did D2 receive the request the consignor made regarding the transportation of the goods, whether or not D2 knew that person and how the consignor found D2 etc. D2 was the only person who had knowledge of such vital information.

Conclusion

16. Having considered all the relevant information and submissions of the defence, I am of the view that it must be a personal choice D2 made to exercise his right of silence even though he was in the company of a lawyer.

17. As in the present case, D2 was the only person who had knowledge of the crucial information. This couples with the fact that the facts of the case clearly show that D2 participated in a crucial respect of a criminal act makes it a very unusual case in my view. Weight could be attached to D2’s election to remain silent under caution to support the prosecution’s argument that he brought suspicion upon himself. His election to remain silent led the prosecution to falsely believe that they had a case stronger than it actually was, as there was nothing in the prosecution case or information to rebut or explain the allegation that the defendant had taken part in a criminal act.

18. On the basis of the above reasons, although in the normal course of events, the defence is generally awarded costs when the prosecution withdraws the charge, I exercise my discretion to refuse the application for costs of D2 in the unique circumstances of the case.”

Grounds of appeal

6.  The main argument advanced by counsel for D2 in the appeal, Mr Paulinus Lo, was that the principal magistrate erred in ruling that there was a prima facie case against D2 solely on the basis of the summary of facts the prosecution submitted. The said facts, however, were not evidence. Besides, D2 was jointly charged with another person for burglary. The charge had nothing to do with the identity of the consignor.

7.  Mr Lo also argued to the principal magistrate erred in thinking that by remaining silent, D2 had misled the prosecution into thinking that they had a case stronger than it actually was, and “there was nothing to rebut or explain the allegation that the defendant had taken part in a criminal act”.

Case chronology and hearings in the Magistracy

8.  The case was first brought before the court on 25 January 2014. It was adjourned to 24 April 2014 for legal advice.

9.  On 24 April 2014, the prosecution asked for a further adjournment on the ground that legal advice instructed that further enquires be carried out by the police. The principal magistrate adjourned the case to 22 May 2014.

10.  On 22 May, the prosecution applied for the withdrawal of the charge without giving any reason for the decision.

11.  At that time, Mr Tse acting for D2 applied for costs. The prosecution opposed the application. Relying on the summary of facts, the prosecution argued that D2, with his suspicious behaviour, had brought suspicion upon himself and should not be awarded costs. Mr Tse submitted that it was the prosecution which applied to withdraw the charge, a situation that was different from one where a defendant was acquitted on a technicality. As the prosecution could not establish a prima facie case, costs should be to D2.

12.  The principal magistrate asked the parties to assist the court on the question of costs, in particular in situation where the defendant in question exercised his right to remain silent. He then adjourned the case to the afternoon of the same day, 22 May, for the hearing to be resumed.

13.  In the resumed hearing in the afternoon, Mr Tse relied on two decided cases, one of which concerned the withdrawal of charge by the prosecution: HKSAR v Lam Chiu Fong (林超芳) and Others, HCMA 1148/2007.

14.  The principal magistrate brought up another case (Cheng Kam Kuen v HKSAR, HCAL 92/2004) in the course of his discussion with Mr Tse.

15.  The prosecution furnished further information. They said according to the statement made by one of the partners of the company owning the vehicle, D2 told the said partner that an order had been received. But the said partner was not comfortable with the fact that D2 was new to the company so he disallowed him to drive and arranged D1 be the driver instead. The prosecution argued that as D2 was the person receiving the order, he was not only the only linkage but also the only contact. Besides, he was the only person in the company of the vehicle owner who failed to provide any information.

16.  The principal magistrate then enquired of the defence if they disputed the summary of facts the prosecution submitted, and said that if there was any dispute, he had “no alternative but to ask the prosecution to call a witness … it is not appropriate at the present stage to make a ruling immediately” ( 27Q of the appeal bundle). The matter was adjourned to 5 June 2014.

17.  On 5 June, the principal magistrate read out the summary of facts as submitted by the prosecution (28U to 29C of the appeal bundle):

“Court: The police investigation was—the case happened on 15 October 2013. Based on the registration number of the vehicle captured by the CCTV, the police identified some suspects. They then arrested D1 on 23 January 2014. The account given by D1 on arrest was that he made the delivery of the goods under D2’s arrangement and received only $1,000. At that time, D1 received a phone call from PW6 who told (him) to handover—to deliver goods. Arrangement was made for D1 to contact D2. D2 gave D1 a telephone number. D1 then went to hand over the goods. D2 was arrested on the following day, that is, 24 January. He made no indication whatsoever under caution.

     According to PW6, it was D2 who requested to drive the vehicle to deliver the goods….”

18.  After the principal magistrate had read out the summary of facts, Mr Tse said he had no further submission to make. The principal magistrate gave his decision immediately thereafter. He declined D2’s application for costs on the ground that he had brought suspicion upon himself.

The consideration of this court

19.  First, HKSAR v Lam Chiu Fong(林超芳) and Others, is a magistracy appeal judgment by Deputy High Court Judge Line (as he then was) that Mr Tse provided to the principal magistrate who referred to it in his statement of findings. In that case, a number of people were charged with unlawful assembly. The prosecution applied to withdraw the charge. The magistrate decided against awarding the defence costs after considering the conduct of the defendants, including the show of force in a triad-like manner and threatening words and acts of those that were present at the scene.

20.  Deputy Judge Line referred to Qamar Sheraz v HKSAR (2007) 10 HKCFAR 696，which said, “… 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.”

21.  Deputy Judge Line therefore overturned the magistrate’s order and ordered that costs be to the appellants.

22.  No one, including the principal magistrate, Mr Tse, and not even the counsel for both parties before me, noticed that the case was further appealed, and in Secretary for Justice v Lam Chiu Fong [2009] 2 HKLRD 484, (CACC 71/2008), the Court of Appeal quashed the order Deputy Judge Line made and upheld the order the magistrate made not to award costs to the appellants.

23.  In the above case, the Court of Appeal dealt with the legal principles regarding the question of costs in cases where the prosecution withdrew the charge. Although Stuart-Moore V-P (as he then was) and Beeson J (as she then was) gave a joint judgment and Stock JA (as he then was) gave another judgment, they are not completely different in respect of the relevant principles.

24.  Stuart-Moore V-P and Beeson J pointed out: In exercising the discretion to deprive a defendant of costs for bringing suspicion on himself the court must look at the conduct most relevant to the charges.  This included not only conduct during the investigation or at trial, but also conduct which formed part of the setting for the charges laid against him prior to the investigation or at trial.  However, the Judge could not rely on a version of facts or events which was inconsistent with the acquittal or take a view of the facts which was significantly different from the underlying reasons for the acquittal (having referred to Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730) (Paragraphs 23 and 32 of the judgment).^[1] (Unofficial translation)

25.  Stuart-Moore V-P and Beeson J also pointed out: Where the prosecution withdrew the charges, it was not necessary to call evidence on an application for costs.  The matter could be decided on the basis of a statement of facts provided by the prosecution.  But the magistrate or judge should be looking for independent evidence to justify the conclusion that the defendant brought suspicion upon himself, for example, a confession that he had made. Whether or not it is necessary to call evidence would depend on the individual case.  However, it was not desirable that court lists be clogged with evidential enquiries springing from costs application (having referred to HKSAR v Dove [1998] 1 HKLRD 179, Tong Cun Lin, supra and Mooney v Cardiff Magistrates’ Court (2000) 164 JP 220) (Paragraphs 25-28 of the judgment).^[2] (Unofficial translation)

26.  Stock JA pointed out: Where the prosecution withdrew the charges, the starting consideration was the same as where there had been an acquittal, namely, that the defendant should not be deprived of the costs unless there was positive reason for doing so.  Where the facts were realistically in dispute, and the person charged had not by his conduct brought suspicion on himself or led the prosecution to believe that the case against him was stronger than in fact it was, then when the prosecution withdrew the charge, the court ought to exercise its discretion to award costs to the defendant (Paragraph 42 of the judgment). ^[3] (Unofficial translation)

27.  Stock JA further pointed out: Where charges were withdrawn, the court had made no findings of fact and it would be unrealistic and undesirable to expect the tribunal faced with a cost application to conduct a trial.  It would be important to know the reasons why the prosecution withdrew the charge, what the evidence the prosecution proposed to call was, the strength of that evidence, whether there was evidence from a clearly independent source to support the complaint and, importantly, what undisputed indicia there were as to the defendant’s conduct in the setting of the factual circumstances giving rise to the alleged offence and in the investigation of them (Paragraphs 43-45).^[4] (Unofficial translation)

28.  Following the above principles, the facts of the case showed that after the occurrence of the case, CCTV captured the image of the goods vehicle of the company where D2 and D1 were employed and its registration number. Police enquiries revealed that at the time in question, D1 was the driver. Under caution, D1 said it was D2 who instructed him to be the driver. What D1 said under caution could not be used as evidence against D2, and what he said was only a bare assertion.

29.  As regards the employer of D2, the evidence showed that a goods vehicle of his company was involved in the case. And the removal and transportation of the highly valuable goods took place in the early morning. Generally speaking, normal business movements do not take place in early mornings. The partner himself was also a suspect. He alleged that it was D2, a new employee, who told him that an order had been received. This was not only a bare assertion coming from him, but one that came from someone who was suspected to be involved in the case. In the present case, apart from the bare assertions made by D1 (under caution) and the partner, there was in fact no independent evidence or other information to show that D2 was related to the case and was the only connecting person or contact person.

30.  D2 exercised his right of silence. He did not answer question or give response. His conduct neither brought suspicion upon himself nor led the prosecution to believe that the case against him was stronger than in fact it was.

31.  In these circumstances, denying D2 his costs is tantamount to depriving him of his right of silence.

32.  Admittedly, as pointed out in Cheng Kam Kuen, the exercise of the right of silence by a defendant does not mean that when considering the question of costs, the court cannot take into account the fact that he refused to respond. But each case has its own unique facts. The court must consider the facts in question before making a decision.

33.  In my view, as the principal magistrate was not aware of the principles set out in Lam Chiu Fong and hence had not considered the fact that there was in fact no independent evidence or other information in the present case to show that D2 was related to the case, he wrongly exercised his discretion to deprive D2 of his right to be granted costs.

34.  On the basis of the above reasons, I allow the appeal and order that costs of the lower court hearing and the appeal be to D2.

(Vetted by P. Y. Lo, Barrister-at-law, 2 May 2015)