HKSAR v. SHAFIQ MUHAMMAD

HCMA 196/2023

[2024] HKCFI 2634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 196 OF 2023

(ON APPEAL FROM ESCC 1182/2022)

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J U D G M E N T

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Appeal against the Refusal of Costs

1.  This is an appeal against an order of refusal of costs following an acquittal of 1 of 2 charges.  After a trial, the defendant was convicted of theft, Charge 2 and acquitted of attempted theft, Charge 1.  The magistrate found that the appellant had bought suspicion on himself and refused costs for that acquitted charge.

2.  The appellant has advanced one ground of appeal and that is the magistrate erred in law in refusing costs in respect of that one charge because the appellant had not brought suspicion upon himself.

The Facts and Findings

3.  The prosecution alleged in Charge 1 that in the early hours of the morning of 3 July 2022 outside a restaurant at 10 Pottinger Street, the appellant attempted to steal one Cartier wristwatch worn by PW2 sat on the curb drunk.

4.  PW1 was a police officer who was nearby and observed the appellant approach the victim, PW2.  This officer saw the appellant put his hand on the victims left wrist.  The victim wore his Cartier watch on his left wrist.  As soon as he did that, the police officer witnessed a dispute or argument between the 2 men and approached them.  The appellant told the officer that he only woke up the victim out of the kindness of his heart and concern.

5.  PW2 gave evidence that he had been drinking in the area for over 3 hours and by 2:30am he wanted to make his way home because he was drunk.  Feeling tired he sat down outside 10 Pottinger Street to have a rest.  The appellant greeted him by saying something along the lines of “how are you?” and “nice watch”.  At the same time, the appellant put his hand on his left wrist.  PW2 confronted and challenged him.

6.  The police then arrived.  He agreed in court in his oral evidence that he was drunk and was definitely not sure what was going on at the time and could not be sure what was to happen to or had happened to his watch.

7.  The magistrate accepted the following facts from the prosecution witnesses.  One, the appellant had approached the victim and put his hand on his watch wearing wrist. Two, there was a dispute between the appellant and the victim.  Three, the appellant told the police he was concerned for the victim and under caution said he was waking him up.

8.  The magistrate did not believe the appellant was waking up the victim because it was clear from both prosecution witnesses that the victim was not asleep nor unconscious at the time the appellant approached him.  Even if he was checking on the victim out of concern, it was unreasonable for him to touch his wrist.  It was unnecessary for him to touch this stranger’s wrist.

Discussion

9.  The magistrate set out the governing principles for awarding costs in his ruling.  He was well aware that a court would normally award costs to an acquitted defendant.  However, if there are positive reasons to deprive the defendant then a court has such a discretion; one such positive reason would be where a defendant has brought suspicion upon himself.  The magistrate quoted from the relevant and leading authorities governing principles in awarding costs.  I do not propose to repeat those principles and counsel in their submissions for the appeal have covered them.

10.  The magistrate set out in his ruling why he found the appellant had brought suspicion upon himself.  Mr Allen for the appellant put forward one ground of appeal and submits the victim himself did not say the appellant was attempting to steal his watch.

11.  The respondent submits that is the reason for the acquittal but there is ample evidence to find the appellant behaved suspiciously which attracted the attention of the police officer nearby as well as caused the victim to challenge him.

12.  A magistrate always has a discretion to make an award of costs to the defendant.  In exercising that discretion and deciding an award of costs, a defendant’s conduct and action at the scene may and should be taken into account.

Conclusion

13.  A magistracy appeal is conducted by way of a “rehearing” on the evidence before the magistrate and this would include findings on costs awards.  I have reconsidered whether the appellant should be deprived of costs.

14.  Having considered the reasons for the magistrate’s ruling and the transcript, I myself would have come to the same conclusion that there is a positive reason not to award costs to this appellant in relation to the acquittal of one charge.

15.  I myself find he has brought suspicion upon himself by approaching a man he does not know and putting his hand on the man’s wrist.  The same wrist on which he wore a Cartier watch.  I am sure he was trying his luck but the victim was neither unconscious nor so drunk as to not be able to retaliate or challenge him at that moment.

16.  I would have adopted the same approach as the magistrate and reached the same conclusion.  This appeal against a refusal of costs is devoid of merit and is therefore dismissed.