HKSAR v. MOHAMMAD LIAQAT

DCCC 191/2023

[2025] HKDC 1970

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 191 OF 2023

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RULING ON COSTS

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1.  The Defendant (“D”) was found not guilty of two counts of “Dealing with property known or believed to represent proceeds of an indictable offence”, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. D applies for costs pursuant to section 5 of the Costs in Criminal Cases Ordinance, Cap. 492. The prosecution objects to the application.

2.  It is agreed by the parties that where a defendant is acquitted it is his right that he should be compensated out of public revenue for the costs incurred in defending the charges.

3.  The prosecution’s argument is that D’s conduct had brought suspicion on himself, referring to some of D’s answers in the three video-recorded interviews (“the VRIs”) given voluntarily by D. It is submitted that D had given contradictory answers regarding whether he had ever authorised / allowed anyone to use the account in Charge 1 or had lent the account to others; and that D had claimed he could not remember some transactions of significant amounts in the VRIs but subsequently failed to check and revert to the police about this – and as such, he had brought suspicion on himself. The prosecution also places reliance on the Court’s ruling that there was a case to answer.

4.  I bear in mind the relevant principles set out in the case authorities cited by parties, including Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308, and Tong Cun Lin v HKSAR (1992) 2 HKCFAR 531. I have also considered the recent Court of Appeal cases of HKSAR v Rahman Md Sheikh Mojibur CACC 333/2018 and 律政司司長 訴 張鎮泰及另一人 [2025] 5 HKC 234.

5.  D’s conduct during to the investigation (such as the answers given in the VRIs in this case) is relevant to the court’s exercise of discretion in respect of an application for costs upon an acquittal. However, this is subject to the caveat that “the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”[1] Moreover, the court must not take “a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict.”[2]

6.  I am aware that this is not a case in which D chose to exercise his right of silence at the investigative stage – D chose to answer questions posed during the VRIs, including that he had a second-hand mobile phone business[3]. I found that his answers given under caution in the VRIs were consistent with his evidence in the box, but he was able to provide more information when he testified. At the investigation stage (during the VRIs), the police had not obtained sufficient information for D to be able to answer their detailed questions; subsequently, D had obtained additional information about the transactions himself (for example, by punching in the account numbers of counterparties of relevant transactions at ATM machines); in this way, D was able to give more detailed explanations at trial. I do not agree with the prosecution argument that D’s answers in the VRIs were contradictory or inadequate (or that D should have reverted to the police with more information). I do not see how the prosecution can say that D had brought suspicion upon himself given the court’s findings.

7.  It must be noted that the circumstances of this case are different from those in HKSAR v Rahman Md Sheikh Mojibur CACC 333/2018. In that case, the respondent faced a single charge of money laundering, and was acquitted after trial; the judge ordered costs to be awarded to the respondent, and the appellant appealed against the costs order; it was argued that the respondent had brought suspicion on himself (i.e., he had chosen to inform the police in his video-recorded interview about his occupation and salary but had chosen not to disclose the fact of his earnings in his second-hand mobile telephone business at all). In allowing the application and setting aside the costs order of the judge, the Court of Appeal stated that:

“25. … we must emphasise that a defendant is perfectly entitled not to answer questions or disclose his defence to the investigating authorities. That is his right. But if he chooses to exercise it, it does not mean that he cannot be deprived of costs if he had a perfectly good defence but chose not to give the slightest hint as to its existence, as happened in the present case. After all, it is possible that had the respondent disclosed his business dealings and the documentary evidence in support of them, the prosecution might have considered that they did not have enough evidence to proceed; in which case, the costs which were occasioned to the public and his own purse would have been saved. As it was, the judge accepted that ‘without telling the police that the defendant was engaged in second hand mobile phone trading (it) would be impossible for the police to know of this fact’…”

8.  As already stated, D disclosed his business dealings at the investigation stage, and his answers in the VRIs were consistent with his evidence in the box.

9.  Further with regard to the prosecution’s criticism of D not remembering transactions in relation to his bank account, I agree with the defence that a person under investigation cannot be said to have brought suspicion upon himself just because he did not (at the investigation stage) raise an argument later on used by his advocate with a view to casting a reasonable doubt on the prosecution case.[4] It should be added that it seems the prosecution is asking D in this case to have made perfect disclosure at the investigation stage. As held by the Court of Appeal in 律政司司長 訴 張鎮泰及另一人 [2025] 5 HKC 234, the prosecution should not seek to raise the standard of D’s disclosure at the investigation stage to perfection; to require a defendant acquitted after trial to have cooperated with the relevant authorities to their satisfaction at the investigation stage before he could be awarded costs was not the standard specified in Tong Cun Lin.[5]

10.  As to the contention that D had made a no case to answer submission that was rejected, it is clear that there being a prima facie case does not mean D had brought suspicion on himself; clearly, there being a case to answer does not mean costs should not be awarded.

11.  In the circumstances of this case, I am of the view that costs should be awarded to D.

12.  Regarding the application for certificate for two counsel, Mr Hingorani, counsel-on-fiat, objects to such a certificate being awarded; however, it is fairly acknowledged by him that he received a lot of assistance from those instructing him (in light of the large amount of materials in the case, with many tables having to be prepared). On this issue, the court has to take into account factors including the nature and gravity of the offence, the complexity of the case and the sentence a defendant might face. When considering if it were necessary to employ leading counsel, the appropriate question to ask is: did the defendant act reasonably in instructing the counsel that he did? It is not sufficient reason for the court to disallow leading counsel’s fees from the award merely on the ground that experienced junior counsel or a solicitor could have handled the proceedings (see Archbold Hong Kong 2025 [6-45], R v Dudley Magistrates’ Court ex p Power City Stores Ltd (1990) 154 JP 654, HKSAR v Tsang Sio Pou [2020] 4 HKLRD 729).

13.  In this case, the issues were not complex, but the charges faced by D were very serious; if D had been convicted, he would have faced a substantial period of imprisonment and his reputation as a leader in his community and businessman would have been severely tarnished. I have borne in mind that an award of costs is compensatory rather than punitive. All in all, I am of the view that D’s decision to instruct senior counsel for his defence was a reasonable one.

14.  Moreover, although there were only factual disputes involved and the case was not complex, the documents were voluminous, with the paginated bundle numbers going up to some 6,000 pages; the trial took 7 days. There were many documentary exhibits to go through and numerous transactions to identify, analyse and explain. I am of the view that it was reasonable for D to have engaged two counsel for his defence in the case.

15.  In summary, D’s costs application is allowed, and I grant certificate for two counsel (being the fees incurred in instructing senior counsel and a junior counsel). Such costs are to be taxed if not agreed.