HKSAR v. TANG KAI CHUNG

HCMA 563/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 563 OF 2001

(ON APPEAL FROM STCC 326/2001)

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J U D G M E N T

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1. This Appellant was acquitted of charges under section 10 of the Theft Ordinance Cap.210 and section 20 of the Societies Ordinance, Cap.151. The Appellant applied for costs after the trial, and that application was refused by the Magistrate. His appeal lies from that decision.

2. It is agreed that the Magistrate in giving reasons for the refusal set out correctly the factors that may be taken into account by the court when considering applications for costs in the circumstances of an acquittal. The Magistrate was aware that the normal practice is that costs should follow the acquittal and reviewed the authorities, correctly.

3. She referred in particular to the case of Tong Cun-lin v. HKSAR [2000] 1 HKLRD 113 and was quite aware of the circumstances where refusal of the order is justified, underlining and relying on that part of the judgment where it states: "Wrapped up with this is the strength of the case against the defendant and the circumstances under which he was acquitted. These too are relevant to the exercise of the discretion to deprive him of his costs." This appeared to be the basis for her refusal.

4. The Magistrate's comments at the hearing shows she believed that this acquittal resulted from a technicality (see Bundle P.30). However her detailed reasons for refusal show that the evidence was not sufficiently good for her to accept it, that she did not accept it and on that basis acquitted. There was also a weakness in the prosecution case in that the prosecutor did not adequately lead the identification evidence relating to defendant, in particular, the identification by PW1 of the defendant as the person nicknamed "Tiger".

5. The Magistrate stated that PW1 was not a good witness and nor was PW2. She referred, (at para.10) to the discrepancies between their evidence; she also referred to their evidence being "exaggerated, possibly fabricated" but puts this down to the fact that they were bad witnesses, not in the sense of being dishonest, but that they did not appear to be very confident witnesses, or very bright people. The Magistrate went on to say: "Bearing in mind the standard of proof required, I felt it was unsafe to say that the prosecution had proved the case against the defendant beyond reasonable doubt."

6. Her refusal of the application for costs was because she was of the view that the strength of the case was originally good, in that PW1 had made a complaint of substance to the police and later identified the defendant. She said that she considered the acquittal was a technicality, because she believed the defendant only escaped conviction because PW1 was a bad witness. This was the basis for her refusing costs.

7. I must say that I disagree. In this case, it appears the quality of the eventual evidence was poor, and it may have been made worse by the prosecutor's not dealing competently with the identification evidence. However, neither of those matters can be considered as technicalities and it is right that the Appellant should have his costs in this case, however, distasteful that may be to the Magistrate.

8. The appeal is allowed. Costs of the trial in the Magistracy and for this Appeal are awarded to the Appellant, such costs to be taxed if not agreed.