HKSAR v. LEE TSANG KONG

HCCC169 & 232/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS. 169 AND 232 OF 2001

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R U L I N G

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1. The accused person, who was the 4th accused in the original trial, was indicted on one count which was the 3rd Count in the original trial. That count was preferred against the 1st and 2nd accused and the present accused, and alleged that between 1 December 1995 and 30 April 1996 they conspired together and with other persons to defraud Hang Seng Bank Limited.

2. At the original trial, on 28 June 2002, after 58 days of trial, I discharged the jury in relation to the 3rd Count. The accused was retried on that count, and his present trial commenced on 12 May 2003 and concluded on 23 May 2003. He was acquitted by the jury by a majority verdict of 5:2.

3. Mr Poll, who appeared for him at the present trial, applied for the costs of the original trial and subsequent proceedings and for the costs of the present trial.

4. Ms Draycott, who appeared for the prosecution in both the original trial and the present trial, resisted the application for costs and relied upon the criteria pronounced in R. v. Kwok Moon Yan [1989] 2 HKLR 396, namely that the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is. In that case, the Court of Appeal held that those two criteria can be read disjunctively and therefore there need not be both a bringing of suspicion and a misleading before a successful defendant will be deprived of his costs.

5. Ms Draycott submitted that when the accused signed the 12 documents which made up part of the documentation, which subsequently led to Hang Seng Bank issuing the four Letters of Credit to the beneficiary company, he had, by his own conduct, brought suspicion on himself. That is true as far as it goes. But as Litton PJ sitting in the Court of Final Appeal in Tong Cun Lin v. HKSAR [1999] 2 HKCFAR 531 observed, the acquittal means that the averments constituting the charge had been found by the jury as not amounting to the crime alleged. It will be speculative, and indeed wrong, for me to try and second guess the jury into why they acquitted the accused. One of the bases of the acquittal must be that when the accused signed those documents, he was either not aware of the nature of the documents or he was not aware that by signing the documents he was doing anything wrong or illegal. As Litton PJ observed in Tong Cun Lin (supra), the judge determining the question of costs should not punish the acquitted accused by taking a view of the facts palpably different from that taken by the jury and reflected in the not guilty verdict.

6. What the Court of Final Appeal found was that the conduct most relevant to the question of whether the accused should be awarded his costs must be his conduct during the investigation and at the trial, his conduct leading to the charge having been found by the jury to be conduct which did not amount to the charge preferred.

7. In the present case, there is no evidence of the accused's conduct during the investigation of the case. At the trial, he elected, as was his right, to remain silent and to call no witnesses. I cannot therefore say, having regard to what I have discussed above and in particular the Court of Final Appeal's view of conduct bringing suspicion upon himself, that the accused's conduct in this case has brought suspicion on himself.

8. I therefore award to the accused the costs of his defence at the original trial and at the present trial. These costs are to be taxed, if not agreed. The costs for the original trial are to include the 58 days of trial and the costs of 17 September 2002 when senior counsel appeared on the accused's behalf and applied for the costs of the trial.