HKSAR v. Kirkham, Mark Edward

HCMA 658/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 658 OF 2015

(ON APPEAL FROM ESCC NO 693 OF 2015)

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R U L I N G   O N   C O S T S

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Introduction

1.The appellant faced two counts of “Assaulting a Police Officer”, contrary to section 63 of the Police Force Ordinance, Cap 232 at Eastern Magistracy.  He pleaded not guilty to both charges before the Magistrate and he was acquitted of both charges after trial.  The prosecution later applied to review the acquittal of Charge 2 and the verdict was subsequently reversed.  In the end, the appellant was convicted of Charge 2 and was sentenced to 3 weeks’ imprisonment suspended for 12 months.

2.The appellant later appealed against the conviction for Charge 2 before me and in a judgment consisting of 18 pages handed down on 29 July, 2016, I allowed the appeal and set aside the conviction. 

3.In respect of costs, I made an order that the costs of the appeal be to the appellant, to be taxed if not agreed.

4.Pursuant to the direction in the judgment delivered, Ms. Elizabeth Hebert, counsel for the appellant, subsequently also filed a written application for costs of trial and review.

5.In reply, Mr. Derek Wong, Senior Public Prosecutor, of the respondent opposed the said application. 

Costs of the Review

6.The initial “Not Guilty” verdict on Charge 2 was based on the finding by the Magistrate that the appellant bit the police officer PW3 out of panic and that he might be affected by alcohol and there was a possibility that he did not have the intention to hurt PW3. In the review hearing, the prosecution submitted that self-induced intoxication is not a defence for Charge 2 because the charge is one of basic intent offence.  Following the fact findings of the court, the only logical conclusion must be a verdict of guilty. 

7.The Magistrate reconsidered the evidence of the case and the submissions of both sides.  He agreed with the prosecution that self-induced intoxication is not a defence to the charge, the charge being a basic intent offence.  The appellant may still be convicted even if he was intoxicated to the extent that he did not know what he did, if it was self-intoxication. 

8.The Magistrate pointed out that there was no dispute that the appellant did bite PW3’s arm.  Further, there was no evidence that the appellant was so intoxicated that he did not know what he was doing.  The Magistrate found that even though the appellant might have consumed some alcohol, he remained sober at the material times.  After reconsidering the evidence, the only logical finding is that the appellant knew what he was doing and he bit PW3 intentionally. 

9.At the review hearing, the defence replied that the acquittal on Charge 2 was correct as the arrest was unlawful and the appellant was merely acting in self-defence. 

10.The Magistrate agreed that if the arrest was unlawful, the arrested person may use reasonable force to resist the arrest or to protect himself.  In the present case, however, he found the arrest of the appellant to be a lawful one.  He found that when PW3 arrested the appellant, he had reasonable suspicion to believe that the appellant had committed a criminal offence.  He therefore found the arrest to be lawful.  This finding was later challenged by the appellant during the appeal before me but I agreed with the Magistrate on this issue and this ground of appeal failed.

11.As to whether self-defence is a defence opened to the appellant, the Magistrate found that when PW3 arrested him, no excessive force was used against him and there was really no need for him to defend himself.  The appellant was handcuffed at the back because he kept on struggling.  He might feel uncomfortable but he was not in danger.  As PW3 was not attacking him, biting PW3’s arm could not be an act of self-defence.  In the circumstances, the Magistrate found that the appellant was not acting in self-defence and he was therefore convicted on Charge 2 in the review hearing.

12.Based on my judgment in the appeal, although as said, I agreed with the Magistrate that the arrest of the appellant by PW3 was lawful, I disagreed with his finding that the appellant was not acting in self-defence when he bit the arm of PW3.  In particular, I found that the rejection by the Magistrate of the claim by the appellant that he was nearly suffocated on the basis that if he was nearly strangled, injury or mark on the neck would have been found by the doctor during medical examination was unsafe and unsatisfactory.  I held that such a finding was unreasonable as there would not necessarily be injury or mark to the appellant’s neck if his airway was already restricted by the arm of PW3 as testified by the appellant.

13.Based on the reasons as detailed in my judgment, I agreed with Ms. Herbert’s submission that the Magistrate plainly erred when he rejected the appellant’s evidence on the issue of self-defence.  As such, although in the review hearing, the Magistrate conceded that self-induced intoxication was not a defence to this charge, he still should not have reviewed his decision of acquittal on Charge 2. 

14.In his written reply, Mr. Wong opposed the application for costs of the review solely on the ground that the appellant did bring suspicion upon himself by his violent conduct as there was no dispute that the appellant bit PW3’s left forearm when PW3 was trying to control the appellant inside the police vehicle.  I disagree.  As a general proposition, if the issue of self-defence is raised in the trial and is eventually found by the court to be true or might be true, how can the court still holds that the defendant has brought suspicion upon himself just because the defendant fought back in self-defence?

Costs of the Trial

15.On behalf of the appellant, Ms. Herbert also wrote to apply for costs of the trial in respect of both charges.

16.In respect of Charge 2, she submitted that the appellant ought to have been acquitted on the basis that the Magistrate could not rule out that he had acted in self-defence.

17.In respect of Charge 1, she submitted that the appellant was acquitted on the basis that PW2’s evidence in relation to the spitting was unreliable and certainly did not happen in the time-framed suggested and PW1’s evidence was vague and lacked detail and the Magistrate could not be sure that the spitting was intentional or if it was accidental spray.

18.One must not lose sight of the fact that although the appellant was acquitted of both charges initially after the trial, he did not apply for costs of the trial in respect of aby of the charges and to this, Ms. Herbert sought to explain that the Magistrate would undoubtedly have rejected the application by referring to the following finding/observation by the Magistrate when he gave his reasons for acquittal:-

“Based on the above analysis, so it is clear that the defendant had only himself, or perhaps, his colleague to blame for causing the trouble and that I find the defendant clearly brought suspicion upon himself…” (see p.69-70 of the Appeal Bundle)

19.Now based on my findings at paragraphs 35, 37 and 38 of the judgment, Ms. Herbert argued that the Magistrate’s finding/observation that the appellant brought suspicion upon himself cannot stand because it was PW2’s failure to properly communicate his reasons for detaining the appellant for questioning at the outset that caused the ultimate outcome.

20.Mr. Wong, on behalf of the respondent, replied that the above finding/observation that the appellant clearly brought suspicion upon himself was only related to Charge 2.  In relation to Charge 1, the appellant could have asked for costs but he did not.

21.In support, Mr. Wong also relied on the Court of Final Appeal’s decision in HKSAR v Hui Yui-sang (2006) HKCFAR 308 in which it was held that the following procedure should be adopted in the application for costs in the event of acquittal:-

(1) Immediately after a not guilty verdict is delivered, defence counsel should at an appropriate moment, indicate to the court whether he will make any application for costs. (emphasis added)

(2) If an application for costs is made, prosecuting counsel should inform the court whether he opposes the application and if so, on what grounds.  He should also identify the facts relied on in support of such grounds.

(3) Unless otherwise directed by the court, both counsel should be ready there and then to make submissions to the court.  If, for whatever reasons, it is not convenient to hear the arguments then and/or the matter has to be adjourned, the application should be dealt with as early as possible.

(4) Having heard submissions from the parties, the judge, in giving his reasons for allowing or refusing costs, should state precisely the grounds upon which he exercises his discretion and the fact relied on him in coming to his conclusion.

22.Ms. Herbert responded to Mr. Wong’s submission by arguing that whilst the appellant recognised the above procedures as set out by the Court of Final Appeal, the court still retains a wide discretion in the costs application.  She further argued that the above finding/observation by the Magistrate as quoted was in relation to both charges as they arose out of the same chain of events and not only related to Charge 2 as submitted by Mr. Wong.

The costs of the trial in relation to Charge 1

23.In my judgment, the application of costs of the trial in respect of Charge 1 is totally misconceived.  This present appeal only concerns Charge 2 and had nothing to do with the acquittal of Charge 1 as correctly submitted by the respondent.  Whether the quoted passage of the oral reasons by the Magistrate at paragraph 18 only concerns with Charge 2 or also in relation to Charge 1 was not very clear but it was irrelevant in my view as far as the application for the costs in relation to Charge 1 is concerned because assuming that it does concern Charge 1, the finding has never been appealed and was thus still binding on the appellant.  Even if the Magistrate had found that the appellant’s conduct in this charge had bought suspicion upon himself, it did not prevent Ms. Herbert from making an application for costs of the trial of the charge after an acquittal on Charge 1.  The Magistrate’s observation/finding on the appellant’s conduct could well be wrong and was always appealable.  In any event, the appellant and his counsel were not bound by the views expressed by the Magistrate in his oral reasons.  As stated by the Court of Final Appeal in Hui Yui-sang (supra):

“… In my view, it is prudent for defence counsel to consider before and not after the delivery of the verdict whether there are any grounds to apply for costs in the event his client is acquitted and if necessary, to take instruction on it…” (see para 30)

24.The appellant chose not to make the application for costs of the trial in relation to Charge 1 following the acquittal. This must be a conscious decision and in my judgment, that is the end of the matter. 

The costs of the trial in relation to Charge 2

25.The appellant did not apply for costs of the trial in relation to the charge.  Ms. Herbert tried to justify her omission to apply for costs after acquittal by submitting that given the finding/observation by the Magistrate on the conduct of the appellant, the Magistrate would undoubtedly have rejected any application made at the time.  That may well be the case but I only need to repeat what I have said in relation to Charge 1 and bearing in mind the appellant can always appeal against the Magistrate’s decision on costs alone without disturbing his finding on the charge, the Magistrate’s negative finding/observation on the conduct of the appellant did not begin to justify the appellant’s failure to apply for costs immediately after the acquittal in any event.

26.However, as the history of the proceedings unfolded, the Magistrate subsequently reviewed his decision to acquit and convicted the appellant on Charge 2. Following my judgment on appeal, it is incumbent for me to consider the issue of costs of the trial in relation to this charge afresh. I note in particular that even Ms. Herbert in her reply to the respondent’s submission has already submitted, and in my view properly, that the facts in relation to both charges arose out of the same chain of events. In my judgment, the initial spitting by the appellant on PW1’s face, be it accidental or intentional, was no doubt a suspicious conduct that set the whole chain of events in motion and flared up the whole incident. As the facts of the two charges were continuous and so interwoven, the suspicious conduct on the part of the appellant on Charge 1 equally applies to Charge 2. Put shortly, the allegation of Charge 2 would not have been made in the first place had it not been the spitting incident on Charge 1. As a matter of principle, I therefore decline to exercise my discretion to award costs of the trial in relation to Charge 2 to the appellant.

Conclusion

27.Based on the above reasons, the application for costs of the review by the appellant is allowed but the application for costs of the trial in respect of both charges by the appellant is accordingly refused.

Order

28.Costs of the review to the appellant, to be taxed if not agreed.

Written submissions by Mr. Derek Wong, Senior Public Prosecutor of the Department of Justice, for the respondent

Written submissions by Ms. Elizabeth Hebert, instructed by Messrs. Oldham, Li & Nie, for the appellant