CHENG KAM KUEN v. HKSAR

HCAL 92/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 92 OF 2004

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J U D G M E N T

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Facts

1.  The Applicant is the accused in District Court Criminal Case No. 1293/2003, where he faced two charges.  The first charge was theft in relation to a total of 30 kg of gold bars.  The second charge was evasion of liability by deception, relating to some forged cheques.  The Applicant was acquitted of both charges after trial.  He applied for costs.  The deputy district judge refused his application.

2.  There is no right of appeal from such an order: see Costs in Criminal Cases Ordinance (Cap. 492) (“the Ordinance”), section 19.

3.  The Applicant therefore seeks to challenge the decision and order of the deputy judge by way of judicial review in these proceedings.

4.  It is convenient to set out in full the reasons given by the deputy judge for his decision on costs:

“	1.	The Defendant was acquitted after trial of one count of theft and one count of evasion of liability by deception.  The defence applies to the Court for costs.
	2.	In deciding the application, I have taken into account the provisions under the Costs in Criminal Proceedings Ordinance, the reference books submitted and authorities quoted by the defence, particularly the case Tong Cun Lin [2000] 1 HKLRD 113.
	3.	The main evidence of this case came from PW1, the victim.The Defendant also testified in court.Having considered all the evidence, I do not believe the evidence given by the Defendant.However, having assessed all the evidence, I am of the view that PW1 did not tell the whole truth either.Therefore, I ruled that the prosecution has not proved those two charges beyond all reasonable doubts.
	4.	I fully appreciate that the Defendant has been acquitted and that unless there are exceptional circumstances, the Court should exercise its discretion to award costs to the Defendant.In considering how to exercise the discretion, I have considered all the relevant circumstances, especially the attitude taken by the Defendant during the time of (police) investigation and the trial.During (police) investigation, the Defendant did not make any confession.When the Defendant was confronted with police allegations (and) when he was interviewed in the presence of his lawyer, he exercised his right to remain silent.At the trial, the Defendant exercised his right to testify.That was the first time he gave an account of the agreement made between PW1 and him and the whole event.His version and the version given by PW1 were completely different.  He did not only give evidence verbally but also submitted document(s) and explained the contents of the document(s).
	5.	The defence pointed out that the documents were all along kept in the Defendant’s office.  It was just that the police did not seize the documents as exhibits when they conducted the search, the Defendant had no intention to hide the documents.  However, I appreciate that if there is no explanation from the maker personally, others will not get to know what the contents thereof are related to and it will be difficult to tell the meaning of the documents from the documents themselves.  Before the trial, no one, including the police and the prosecution, could have knowledge of the Defendant’s explanation about the matter.
	6.	I am of the view that in the present case, taking into account PW1’s allegations and all the circumstantial evidence, including the Defendant’s utter failure to restore the amount of lost gold, in this highly suspicious situation, the Defendant chose to remain silent during the time when enquiries were made of him, though he should not be blamed or punished for doing this, as this is the Defendant’s exercise of an important constitutional right, yet in deciding whether to exercise (my) discretion to award costs to the Defendant, I consider this an important and relevant factor.  I am also of the view that the way the Defendant handled this matter has brought much suspicions upon himself and misled the prosecution in their assessment of the case.  Discretion should be exercised and the defence’s application should be dismissed.  Accordingly, the defence’s application for costs is dismissed.”  1

5.  It is true that in paragraph 3 of the reasons, the deputy judge said he did not believe the Applicant’s evidence given at trial.  But that was plainly a simplification of what had happened.  Indeed, the deputy judge had given detailed reasons for acquitting the Applicant not more than 2 hours before he gave his decision on the question of costs on the same day.  In his reasons for the verdict, he referred to the evidence of the prosecution witnesses, including the evidence of the victim (PW1).  He referred to the evidence of the Applicant.  He then said that there were many unreasonable aspects in the evidence of the Applicant.  He went on to remind himself that the burden of proof lied with the prosecution.  He then said in paragraph 33 as follows:

“

33.

The Defendant gave evidence in the trial explaining about the incident.  The burden of proof is not on the defence.  However, if the evidence of the Defendant is true or may be true, or there are reasonable doubts in the overall evidence, then I have to acquit the Defendant.  In my deliberation, I bear in mind that the Defendant has a clear record and he is well-known in the business sector of gold ornaments and jewellery.  This is a factor in his favour in my assessment of his credibility, and generally speaking a man of clear record has a lower propensity for committing crimes.”  2

6.  He went on to discuss and analyse in greater detail the prosecution case (and the evidence of PW1) as well as the evidence of the Applicant.  Having pointed out various unsatisfactory aspects in the evidence of PW1, the deputy judge gave his reasons for his eventual verdict as follows:

“	44.	I do not believe that the Defendant was totally honest in his evidence.  However, this is not a basis on which I can convict the Defendant because the burden of proof all along lies with the prosecution.  After assessing the overall evidence, though I am of the view that the evidence of PW1 is more reasonable, I cannot be sure, after careful consideration, as to whether she has indeed told the Court honestly all the important aspects of the incident.  She obviously concealed the fact that she knew about the item of silver cast (銀版) and this had great bearing on what the contents of the agreement really were.  She said she had checked the record(s) and deposited gold for many days, yet there was no evidence to support this.  She was evasive when she was asked the question whether she had received profits amounting to $60,000 odd.  Also, there was much suspicion arising out of the $20,000 she received subsequently as interest.  She failed to explain clearly as to why she approached the solicitors’ firm.  She also lied to the police.  Moreover, the prosecution’s evidence cannot make me feel certain that what the Defendant said was definitely untrue; part of his evidence had documentary proof.
	45.	After assessing the overall evidence, I find the case to be highly suspicious.  Though the inference the prosecution invites the Court to draw is a reasonable one and I do not quite believe the evidence of the Defendant, I cannot totally negate his evidence.  This is not enough. I cannot find the Defendant guilty simply because I do not believe him, as the burden of proof lies with the prosecution.  Though I am of the view that what PW1 said is probably true, I am not satisfied that PW1 has revealed the whole truth of the incident to the Court and I cannot safely rely on her evidence.  Leaving aside the evidence of PW1, other circumstantial evidence alone is not enough to establish the Defendant has committed an offence.
	46.	This is a criminal case, and the prosecution has to prove the charges beyond all reasonable doubts.  I do not think the evidence adduced by the prosecution has met the standard required.  Accordingly, I find the Defendant not guilty of the two charges.”  3

Application for judicial review

7.  In this application for judicial review, the Applicant essentially argued that it was wrong for the deputy judge to take into account and accord significant weight to the fact that he had exercised his right of silence during the police investigation.  In particular, Mr Paul Wu, appearing for the Applicant, argued that since the Applicant’s evidence was disbelieved by the deputy judge at trial, even if he had given the same explanation to the police during the investigation, he would not have been believed and the prosecution against him would have gone ahead.  In those circumstances, counsel submitted that the Applicant ought not to be deprived of his entitlement to costs following his acquittal simply because he had kept silent, in the exercise of his undoubted constitutional right of silence.

Costs following acquittal

8.  The question of costs is governed by section 5 of the Ordinance, which gives the court a very general and wide discretion.  The section does not lay down any relevant criteria for the exercise of the discretion.

9.  In R. v. Kwok Moon-yan [1989] 2 HKLR 396, the Court of Appeal had the occasion to deal with section 83XX of the Criminal Procedure Ordinance (Cap. 221) (which has since replaced by the provisions in the Ordinance), which gave the court a discretion to order the payment out of the public revenue of the costs of a successful appellant.  Silke VP, giving the judgment of the court, said at pages 400H to 401C/D:

“We emphasise that the exercise of the power provided by s. 83XX is in the unfettered discretion of the Court, and falls to be exercised in the light of the circumstances of each particular case, but the normal practice is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order.

…

The real issues here are: in what circumstances should this Court find positive reasons for “making a different order” in the case of a successful appellant; and second: do the same considerations apply to the grant or refusal of an award in the appeal itself as are relevant to costs in all the proceedings prior to the appeal.

On the first: positive reasons for not making such an order would be (i) where the appellant’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.  We do not view this as meaning that there must be both a bringing of suspicion and a misleading before a successful appellant will be deprived of his costs.  If it is the view of the Court that a man has brought suspicion on himself, or having done that, he had also misled the prosecution, either by the very bringing of that suspicion, or some other matter, into thinking the case against him is stronger than it is then these, either separately or combined, are factors which lie for the consideration of the Court in the exercise of its discretion.”

10.  In Tong Cun Lin v. HKSAR [2000] 1 HKLRD 113, the Court of Final Appeal dealt with section 73A(1) of the Criminal Procedure Ordinance (Cap. 221), which has also been replaced by the provisions in the Ordinance.  Litton PJ, delivering the leading judgment of the court, said at page 117E to J as follows:

“The governing principle 

The legislature in empowering the court to award costs has not laid down the conditions under which the broad discretion under s. 73A(1) should be exercised.  The court must therefore by construction fill the gap.  What then are the governing principles?  When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges.  In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced.  This cannot be confined to any particular period of time.  Since, however, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc.  Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict.  The person in the best position to weigh those matters is clearly the judge himself.” (emphasis added)

11.  In the recent case of Tsang Wai-ping v. HKSAR FACC 12/2004 (11 March 2005), the Court of Final Appeal had to deal with the refusal by a trial judge to award costs to an acquitted defendant after a trial by jury in the Court of First Instance.  The Court of Final Appeal allowed the appeal and reversed the trial judge’s order, essentially on the basis that the trial judge should not speculate on the reasons of the jury behind the not-guilty verdict, and must, in deciding whether to award costs (which would be the normal course), proceed on the footing of the verdict of acquittal.  Bokhary PJ emphasised in his leading judgment that the idea of costs normally following the event and respect for the presumption of innocence are basic to our system of criminal justice (paragraph 8).  Sir Gerard Brennan NPJ pointed out in his concurring judgment that most verdicts in jury trials are “opaque” and a “verdict of acquittal must be interpreted as negativing some of or all of the elements of an offence which the prosecution bore the burden of proving” (paragraph 28).  His Lordship expanded on this theme and said thus:

“	29.	It follows that it would be an exceptional case where a trial judge could go behind an opaque verdict of acquittal by making a finding on a fact or issue that was in contest before the jury.  Generally speaking, a judge cannot know whether such a finding is “palpably different from that taken by the jury and reflected in the not guilty verdict”.  The verdict thus constrains the findings of fact which a judge might make in exercising the costs discretion adversely to the person acquitted to facts which are admitted or which were otherwise not in contest before the jury.  Allowing for those exceptions, the judge is precluded from acting on an assumption as to the factual basis of an acquittal.
		…
	32.	There was evidence of the appellant’s innocent involvement in the events leading to his being charged.  There was evidence that may also have engendered a doubt about the veracity of the prosecution evidence.  Thus the acquittal could be explained by the jury’s acceptance of the truth or of the possibility of the truth of the defence case.  The judge could not properly proceed on any other footing.  His Lordship was in error in speculating that the jury might have convicted if they had been permitted to consider the evidence of the appellant’s swerving on to the footpath.  That speculation does not give full effect to the verdict of acquittal.
	33.	There is no “positive reason for making a different order” from an order in the appellant’s favour to adopt the criterion expressed in the English Practice Direction.  It follows that, in lieu of the order set aside, an order should be made awarding the appellant costs of the criminal trial.”

12.  All this is really uncontroversial in the present case, and to be fair, I do not think Mr Wu has suggested in his submission that the deputy judge has not been aware of or has miscomprehended these principles in the present case.

Can the exercise of the right of silence be taken into account?

13.  What is more controversial is where, as in the present case, the accused chose to exercise his right of silence and did not give any explanation to the police during the investigation or otherwise disclose his defence before the trial.  The question is whether, and if so in what circumstances, the court can take that into account in considering the question of costs (causation and weight are of course different matters – see below).

Tsang Wai-ping

14.  In Tsang Wai-ping, according to the judgment of Bokhary PJ, there was at one stage a suggestion by the prosecution to the trial judge during argument on costs that the accused had brought suspicion upon himself by exercising his right to silence at a video-recorded encounter at which the police sought to interview him.  But the reference in the judgment to this aspect of the case was very brief; all that is known is found in paragraph 5 of Bokhary PJ’s judgment:

“

5.

Whereupon the appellant’s then counsel (Mr Raymond Yu) applied to the trial judge (Gall J) for costs on his behalf.  Initially Gall J was disposed to think that the appellant should be deprived of his costs on the basis that he had brought suspicion upon himself by exercising his right to silence at a video-recorded encounter at which the police sought to interview him.  This was after he had been told by the police of his right to silence and had received legal advice to exercise that right.  Not surprisingly and quite rightly, Gall J was quickly persuaded that the appellant’s exercise of his right to silence could not be used to deprive him of costs.  That would be so even if the appellant had never protested his innocence to the police at any stage.  As it happens and it is only fair to note, the appellant had in fact earlier said this to the police: “I was responsible for driving only.  I know nothing about the case.  The stuff was brought to the car by the man sitting behind”.”  (emphasis added)

15.  I do not believe that by that single paragraph, Bokhary PJ was seeking to lay down a general bar against taking into account an accused’s refusal or failure to give any explanation or otherwise disclose his defence in the exercise of the right of silence during the police investigation stage in considering the question of costs following acquittal in all circumstances, regardless of whether and how the exercise of the right of silence in a particular case was factually relevant to any of the possible “positive reasons” for making a “different” order in the case of an acquittal.  As I said above, the detailed facts in this regard in Tsang Wai-ping are not apparent from the judgment of the Court of Final Appeal.  Moreover, in any event, according to what is known, the accused in that case did protest his innocence to the police at an earlier stage.  More importantly, Bokhary PJ could not have intended to lay down such a general rule without discussing the relevant authorities in this regard, to which I now turn.

Local authorities

16.  In Kwok Moon-yan, supra, Silke VP said specifically (at p. 401C/D-E/F):

“The manner in which an appellant originally meets the charge will be a factor.  We are aware that in R. v. Lee Tsat-pinCrim App No. 315 of 1985 (unreported) the Court took the view that the non-advancing of an explanation to the investigating authority did not fall within the rubric of bringing suspicion or misleading.  We entirely accept that the principle that no man should become his own betrayer must remain inviolate.  But we do not think this to mean that, if an appellant had a good and valid explanation which he neglected to bring forward at an early and appropriate moment this should not be a factor in considering his contribution to the prosecution bringing the charge in the first place.  It is unlikely that a case of that nature would ever reach the Court of Appeal but if it did then no costs of anything other than the proceedings in that Court should be allowed.” (emphasis added)

17.  Furthermore, in the passage already extracted above, Litton PJ said in Tong Cun Lin that the court may take into account “[h]ow [the accused] first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc.”  Depending on how one should read that sentence, it could include the situation where the accused chose to remain silent when he was interviewed, although I note that in Tong Cun Lin, the appellant chose to talk and made admissions during the investigation (see p. 118A-G).

18.  In Archbold Hong Kong 2005 para. 6-3, the editors say:

“	6-3	Generally, as a matter of course, the judge or magistrate will ask himself these three questions:
		(1)	Has the defendant or appellant brought suspicion upon himself and or misled the prosecution into believing that it had a much stronger case against him?
		(2)	Was the defendant acquitted on a technicality, which has no merit?
		(3)	What was the conduct of the defendant during the investigation and the trial?
		It is axiomatic that an arrested person is not required to answer questions or give a statement to the investigating police officers.  On the other hand, if the defendant, for the first time, gives an explanation in court for his conduct that is persuasive, and which probably led the court or jury to acquit him, should this not be a factor to be weighed by the court when considering an application for a defendant costs award?  In some judgments of the courts of Australia, it has been held that a court or judge can take account of the fact, when refusing to make a costs award in favour of the defendant, that the defendant had in effect deliberately held back from giving a pre-trial explanation, thus probably leading to an unnecessary prosecution: Latoudis v. Casey (1990) 170 CLR 534; R v. Ling (1996) 90 A Crim R 376.  It was held in R v. Ling, above, that this approach did not infringe the defendant’s right of silence.  There appears to be no logical reason why a similar approach could not be adopted in this jurisdiction: see Tong Cun-lin v. HKSAR, above.”

Australian authorities

19.  Latoudis v. Casey (1990) 170 CLR 534 was a decision of the High Court of Australia.  In that case, the magistrate who acquitted the accused of various charges refused his application for costs on the ground that the informant had acted reasonably in instituting the proceedings and that the accused had caused suspicion to fall on him by failing to seek proof of ownership of the goods when he acquired them, he having been charged with theft, receiving stolen goods and unlawful possession of the goods.  The majority of the court (Mason CJ, Toohey and McHugh JJ) held that the magistrate’s exercise of discretion had miscarried and the defendant was entitled to his costs.  At page 544, Mason CJ said:

“Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant.  However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant’s costs.  If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.

I agree with Toohey J that, if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs.  Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, it would be just and reasonable to make an award for a proportion of the defendant’s costs.” (emphasis added)

20.  What Toohey J said can be found at page 565 of the report:

“It is unnecessary to speak in terms of a presumption; it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket.

Now, in a particular case there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them.  To return to the examples given earlier in this judgment, if a defendant has been given the opportunity of explaining his or her version of events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs: see, by way of illustration, Reg. v. Dainer; Ex parte Milevich.  This has nothing to do with the right to silence in criminal matters.  A defendant or prospective defendant is entitled to refuse an explanation to the police.  But if an explanation is refused, the successful defendant can hardly complain if the court refuses an award of costs, when an explanation might have avoided the prosecution.”  (emphasis supplied)

21.  The other member of the majority, McHugh J, stated the relevant principles at pages 569 to 570 thus:

“Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings.  Cf.Ritter v. Godfrey (24); Sunday Times Newspaper Co. Ltd. v. McIntosh; Redden v. Chapman; Schaftenaar; see also McEwen v. Siely.  Thus, non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant’s witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs: cf. Reg. v. Dainer; Ex parte Milevich.”  (emphasis added)

22.  The minority of the court (Brennan and Dawson JJ) took a different view of the scope of the discretion and did not find it necessary to deal with this aspect of the case.

23.  In R. v. Ling (1996) 90 A Crim R 376, the Full Court of the Supreme Court of South Australia upheld the exercise of discretion by a magistrate to reduce the costs payable to a successful defendant in a summary prosecution because of the defendant’s failure to disclose the defence case in the course of pre-trial procedures.  It held that this did not abrogate the right of silence.  A substantial part of the leading judgment delivered by Doyle CJ dealt with the proper construction of a pre-trial procedural rule (rule 26) in the Magistrates Court Rules 1992 (SA), which does not concern us.  But the judgment contained a valuable discussion on the right of silence and how the general discretion on costs should be exercised following an acquittal.  The relevant Australian authorities, including Latoudis v. Casey, supra, were examined.  At pages 387 to 388, the learned Chief Justice said:

“In the light of that, I consider that authority requires me to conclude that in the exercise of its discretion in relation to costs the court can take into account conduct of the defence which has unreasonably prolonged the proceedings (Toohey J at 565; 309) or which has occasioned unnecessary expense in the conduct of the proceedings (McHugh J at 569; 312).  It follows that in the exercise of the discretion under s 189(1) a magistrate can take into account, if appropriate, the manner in which the defence conducted itself at a pre-trial conference, including a failure to disclose aspects of the defence case.

It can do so although that conduct was an exercise of the right of silence.  The significance of the conduct will be considered bearing that in mind.  But to describe the conduct as an exercise of that right will not insulate the defence from an adverse decision.

It is unwise and pointless to attempt to categorise the situations or circumstances in which such conduct will arise, or the consequences which should follow if those circumstances are found to exist.

In the present case I put to one side conduct which is such that it could be said that the defence had brought the prosecution upon itself.  I do so because here the relevant conduct (or non-disclosure) occurred after the prosecution was instituted.  But, consistently with the cases cited, conduct before the prosecution is instituted may be relevant to the discretion on costs, although it is an exercise of the right to silence.

As I have said, the discretion has to be exercised upon the basis that the right of silence is a recognised feature of our system of criminal procedure.  It would, therefore, be wrong in my opinion to approach the exercise of the discretion on the mechanical basis that in the ordinary course of events the defence should disclose its case to the prosecution and that failure to do so will in the ordinary course of events expose it to the risk of an unfavourable costs order.  As I have endeavoured to explain, in my opinion there is no such obligation of disclosure on the part of the defence in our system of criminal procedure.  To approach the exercise of the discretion in that mechanical manner would be to ignore the right of silence which the defence has.

But, in a particular case, the manner in which the defence is conducted may justify a refusal to award a successful defendant its costs or its full costs, even though the conduct was an exercise of the right of silence.

The discretion in this case

In my opinion what has to be considered in this case is whether, taking account of the right of silence, and so of the absence of any affirmative duty of disclosure by the defence, it can be said that nevertheless the conduct of the defence is such that it would not be unreasonable or unjust that the successful defendant should bear his own costs or part of them.  If a judgment is made that the conduct of the defence was unreasonable or that the proceedings have been unreasonably prolonged, then the fact that the defence did that in the exercise of the right of silence will not avail the defence.”  (emphasis added)

24.  Both Prior J and Nyland J delivered short concurring judgments (at pp. 390 and 391).

25.  For the sake of completeness, I should add that both Australian cases referred to an earlier decision of R. v. Dainer (1988) 91 FLR 33 with approval.  That was a decision of Miles CJ sitting in the Supreme Court of the Australian Capital Territory.  There the defendants used a tape-recording of some conversations in cross-examination of the informant’s witnesses, which managed to raise sufficient doubt in the mind of the magistrate to secure their acquittal.  The existence of the tape-recording had never been mentioned before the cross-examination.  The magistrate took that into account and refused the defendants costs. 

26.  Miles CJ refused the defendants’ application for judicial review against the order of the magistrate, who argued that the non-disclosure was simply irrelevant and not something that the magistrate was entitled to take into account when considering costs.  His Lordship pointed out that there is no right, as opposed to a “reasonable expectation”, to costs, which is discretionary.  The judge went on to say that the deliberate non-disclosure of the tape was a relevant matter that could be taken into account, and “whether the view be taken that non-disclosure was a sufficient reason or an insufficient reason to deprive [the defendants] of their costs is beside the point” (pp. 35-36).  

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 Final 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 an 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 cases 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.

29.  Some may interpret this conclusion as putting a premium on an accused’s exercise of his constitutional right to silence, not in terms of guilt or innocence, but in terms of his “reasonable expectation” (as opposed to “right”) to costs. 

30.  Ultimately this is a question of where to draw the line.  The constitutional right of silence, enshrined in article 11(2)(g) of the Hong Kong Bill of Rights contained in the Hong Kong Bill of Rights Ordinance (Cap. 383), which is itself entrenched by article 39 of the Basic Law, is essentially concerned with an accused’s innocence or guilt.  One could certainly argue that the possibility of an accused being deprived of costs by reason of his silence or non-disclosure may have the effect of putting undue pressure on him not to exercise his right to silence, thereby indirectly diluting that right and adversely affecting his position on innocence or guilt – the very object of protection of the right of silence in the first place.  I can see the force of the argument. 

31.  Countering this are several considerations: the suggested connection is an indirect one; the direct point in question is costs, not guilt or innocence, and when legal aid is widely available, concern during the investigation/pre-trial stage about recovery of costs in future is in all likelihood more imaginary than real; what is in issue is payment of costs out of the public revenue to the accused, not payment of costs by him to anybody; there is no right or entitlement to costs, which is a discretionary benefit created by statute which does not see fit to exclude – at least not expressly – non-disclosure in the exercise of the right of silence from the discretionary considerations that may be taken into account; and that in an appropriate case the exercise of the right may be taken into account is not tantamount to an automatic refusal of costs – rather the fact that the non-disclosure was the result of the exercise of the accused’s constitutional right of silence must be firmly borne in mind and given due weight in the weighing exercise itself (Ling at pp. 387-388).

32.  As I said, authorities apart, ultimately this is a question of value judgment and drawing the boundary of the right of silence.  The authorities reviewed in this judgment have shown where that boundary, in the wisdom of the judges concerned, should be drawn.  For my part, I agree with the conclusion reached.   

33.  How much weight, if any, should be attached to the refusal or failure to explain or non-disclosure in a particular case is an entirely different matter.  Furthermore, as mentioned above, in the weighing process, the fact that the refusal or failure to explain was done in the exercise of the accused’s constitutional right of silence must be fully borne in mind and given due weight.

34.  Insofar as Mr Wu sought to argue otherwise in this application, I reject his argument.

Causal connection between silence and prosecution/costs

35.  It seems to me that Mr Wu’s remaining argument in this application boiled down to this: since the judge said in his reasons for his decision on costs that he had not believed the Applicant’s evidence (para. 3), whether the Applicant had kept silent or had revealed his story to the police during the investigation would not have mattered – he would not have been believed even if he had revealed his story earlier, just as he was not believed by the deputy judge at trial, and there would still have been the prosecution (and thus the costs incurred).  In short, it was a causation argument.

36.  As a matter of principle, if there really was no causal connection between the refusal or failure to explain or non-disclosure (in the exercise of the right of silence) and the prosecution and/or the attendant costs in a particular case, then as presently advised, I see no justification whatsoever for taking the refusal or failure to explain or non-disclosure into account. 

37.  This is so, however, not so much because one is concerned with a refusal or failure to explain or non-disclosure in the exercise of the right of silence, but rather that that fact has no factual relevance to the matter under consideration and should not be taken into account; in other words, it is a factually irrelevant consideration to the exercise of discretion in question.

Present case

38.  Was Mr Wu right on the facts?  Mr Wu placed much emphasis on paragraph 3 of the reasons for the ruling on costs, where the deputy judge said that he did not believe the evidence given by the Applicant.

39.  However, I have already reproduced above the pertinent paragraphs in the reasons given by the deputy judge for his verdict of not-guilty, which was delivered not more than 2 hours before he ruled on the question of costs on the same day.  What he said in his ruling on costs must be read in context, and in particular it must be read in conjunction with what he had just said in relation to his verdict.

40.  In my view, once one reads the reasons given for the verdict, it must be quite clear that the evidence relied on by the Applicant at trial, which included his oral evidence, the documents he produced at trial and the explanations he gave regarding their contents, was material to the eventual conclusion of the deputy judge that he was not wholly satisfied with the evidence of the victim and the prosecution case (in the criminal sense), and thus the not-guilty verdict. 

41.  In other words, various aspects of the oral or documentary evidence of the Applicant tended to cast doubt on the evidence of the victim and the prosecution case.  In this regard, it must be remembered that in paragraph 33 of the reasons for the verdict, the deputy judge correctly pointed out that if the evidence of the Applicant was true, or possibly true, he must acquit him. 

42.  Then in the concluding paragraphs 44 and 45, the deputy judge said that he did not believe the Applicant was “totally honest in his evidence” (“完全誠實地作供”), that the prosecution evidence had not enabled the court to be certain that “what the Defendant said was definitely untrue” (“控方的證據未能令本席確定被告人所說一定不是真的”), that the evidence of the Applicant was partly supported by documentary evidence, and that although he did not “quite” believe the Applicant’s evidence (“雖然本席不大相信被告人的證詞”), he could not “totally negate” his evidence either (“但亦未能完全否定他的證詞”).

43.  In those circumstances, in my judgment, there were materials before the deputy judge for him to conclude that the circumstances were “highly suspicious” (para. 6 of the reasons for the decision on costs) and that under those circumstances, by his remaining silent during the police investigation, i.e. not proffering an explanation for what had happened and/or not placing any reliance on the available documents that only he could give an explanation on, which when eventually done at trial had the effect of casting doubt on the victim’s evidence and the prosecution case, he had by his own conduct brought suspicion on himself and/or misled the prosecution into thinking that the case against him was stronger than it was – the “positive reasons” for making a different order referred to in the authorities already discussed above.

Weighing exercise and judicial review

44.  As Litton PJ has said in Tong Cun Lin (at page 117J), the person in the best position to weigh all these matters was clearly the trial judge himself. 

45.  Here the nature of the present proceedings must not be forgotten.  In these proceedings, the Court exercises an essentially supervisory jurisdiction.  It does not sit on appeal from the deputy judge’s exercise of discretion; still less does it assume the role of the original decision-maker or tribunal. 

46.  Furthermore, the exercise of discretion is involved here.  Much judicial restraint must be exercised and the Court must be slow to interfere with the exercise of discretion by an inferior court or tribunal.

47.  As I have explained above, in the present case, the deputy judge has correctly identified the legal principles involved.  In my judgment, he has not taken into account any irrelevant considerations.  He was quite entitled to take into account what had happened during the police investigation.  So far as the carrying out of the weighing exercise is concerned, he was in the best position to weigh all the relevant matters and considerations.  Unlike a case involving a trial by jury, the deputy district judge was in the prefect position to know why the verdict of not-guilty was reached. 

48.  As has been pointed out by Bokhary PJ in Tsang Wai-ping (paragraph 17), in a trial in the District Court, there being no jury, the tribunal of law and the tribunal of fact are constituted by one and the same person.  In those circumstances, there is therefore no problem, such as could occur in a jury trial, of the tribunal of law deciding on the question of costs without knowing what view the tribunal of fact took on the question of guilt or innocence (which was the problem that the Court of Final Appeal had to address in Tsang Wai-ping). 

49.  In those circumstances, I am unable to identify any valid public law ground for disturbing the exercise of discretion in this case. 

Outcome

50.  In other words, this application for judicial review must be dismissed.  I so order.  I also make a costs order nisi that the Applicant pay to the Respondent the costs of these proceedings, to be taxed if not agreed.  Unless either side should apply to vary the order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

51.  I thank counsel for their assistance.

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