HKSAR v. Strachan, Raewyn Catherine

HCMA 462/2018

[2019] HKCFI 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 462 OF 2018

(ON APPEAL FROM ESCC NO 1003 OF 2018)

______________________

______________________

__________________

J U D G M E N T

__________________

1.The appeal arises from the refusal of the trial magistrate (“the Magistrate”) to award costs upon his acquittal of the appellant after trial for two charges: (1) criminal damage and (2) common assault.  The Magistrate refused costs on the basis that the appellant brought suspicion upon herself. 

Prosecution case

2.Mr Cheung, for the respondent, succinctly summarized the prosecution case as follows:

“4. In a nutshell, the prosecution relied on the evidence of Madam Amelyn Mocoy (PW1), a domestic worker employed by the appellant’s husband to work at their residence, who was assigned a room in the flat as her service occupancy. Before the day in question, PW1 brought the appellant’s children away from the flat upon instruction from her husband. The couple was then engaged in divorce proceedings. When PW1 returned, she found some of her personal properties in her room damaged. When she informed the appellant’s husband of those state of affairs, the appellant came inside the room. PW1 tried to leave the room but was prevented so by the appellant and, when PW1 pushed the appellant lightly to make way, she kicked her. Case was then reported.

5. The appellant’s cautioned statements were produced under admitted facts. (Exhibits P2, P2A, P3, P3A, P4, P4A). She remained silent in the first two cautioned interviews and stated in the third the following:

‘In the early afternoon of Saturday, 10 February 2018, I noticed my children were missing. Later in that afternoon, my husband messaged me and I realized he had instructed the helper Amelyn to remove the children from our home without my agreement or knowledge. I went in to Amelyn’s room to look for any clue and as to where she might have gone. In the process, I knocked over some items. I am willing to compensate her for the damage incurred. The next morning, the helper returned to the house with my husband. I was worried and tried to look for my children in the helper’s room, during which Amelyn and I had small push and shove and I possibly injured her leg.’ (emphasis added)

Defence case

3.The appellant elected not to testify at trial.

Reasons for acquittal

4.In acquitting the appellant, the Magistrate said PW1 did not witness how her properties were damaged.  It would be difficult to rule out the possibility that the appellant damaged the properties accidentally.  As regards the assault charge, the Magistrate said PW1 could not tell which leg the appellant used to kick her.  When she was taken to the hospital, no visible injuries could be found.  When bruises appeared the following day, as she claimed, she did not seek further medical treatment nor inform the police.  As a result, the Magistrate could not accept PW1’s evidence and could not be sure what had happened in the incident. The appellant was therefore acquitted.

Reasons for refusing costs

5.After the acquittal, Mr Surman (counsel for the appellant both at trial and in the appeal) applied for costs emphasizing the background of the proceedings that the prosecution was in fact willing to accept binding‑over but that was not accepted by the Principal Magistrate on several occasions.  The prosecution was therefore forced to proceed with the trial.

6.The Magistrate refused costs to the appellant on the basis that she brought suspicion upon herself.  The Magistrate was aware of the normal rule that costs should follow the event.  He however took into account the third cautioned interview of the appellant, which contained (a) her admission of having entered PW1’s room and “knocked over” PW1’s properties and (b) her admission of having “small push and shove” with PW1 and “possibly injured” PW1’s leg.  The Magistrate came to the view that the appellant brought suspicion on herself.

Grounds of appeal

7.Three grounds of appeal have been advanced on behalf of the appellant: -

(a)   “The Learned Magistrate erred in law.  He was in error in that he misapplied or incorrectly applied the general principle that costs should follow the event; that costs ought to be awarded to an accused who has been acquitted of an offence or the offences with which they are charged and tried.”

(b)   “The Learned Magistrate erred in law.  He was in error in so far as, although he stated the correct test for the award of costs, namely: costs to be awarded in circumstances of an acquittal unless the accused has either brought suspicion upon themselves and/or been acquitted only as a result of a technicality, the test was incorrectly applied to the facts and circumstances of this case.”

(c)   “The Learned Magistrate erred in fact in finding the accused brought suspicion on herself.”

Respondent’s position

8.Mr Cheung for the respondent opposes the appeal, while accepting the general principles of awarding costs in favour of an acquitted defendant unless one of the following positive reasons exist to deprive him of trial costs[1]: -

(a)   The defendant brought suspicion on himself/herself;

(b)   The defendant was acquitted on a technicality;

(c)   The defendant misled the prosecution into thinking their case was stronger than it was.

9.The respondent submits that the unsuccessful bind‑over applications are irrelevant to the issue of costs.

Discussion

10.Mr Surman helpfully set out in his written submission a chronology of the events when the prosecution and the defence applied for a bind-over by agreement so that the trial needed not be proceeded with. The applications were refused by the Principal Magistrate and another magistrate before the trial proceeded.

11.Mr Surman submits that it was “most unfortunate” that the case had to proceed to trial, while he fairly accepts that it was not the fault of the prosecution.  He stresses that no complaint is made or implied against the conduct of the prosecution throughout the carriage of this matter up to and including delivery of the verdict.

12.The complaint is that eventually there was indeed a trial despite the appellant’s efforts to avoid it.  The Magistrate acquitted the appellant for reasons basically amounting to being unsure so that he was unable to convict.  In such circumstances, it cannot be said that the appellant brought suspicion on herself.  The appellant was therefore entitled to her costs for the trial.

13.I would not say that the unsuccessful applications for bind‑over are entirely irrelevant. In any event, the Magistrate[2] was fully aware of such background.

14.While one can say that the appellant was “unfortunate” because the applications initiated by the defence with agreement of the prosecution for her to be bound over was refused by the Principal Magistrate, it might also be said that she was fortunate as she eventually left the courtroom without a conviction or a bind-over order imposed on her.  Although some minor criminal offences can sometimes be disposed of by way of a bind-over order with consent of both parties, it remains a discretion for the court whether to accept the bind-over proposal.  The Principal Magistrate must have regarded the employer/employee relationship between the defendant and PW1 an important factor and therefore refused the proposal for bind-over.  In this regard, the discretion exercised by the magistrates against such a proposal cannot be said to be unreasonable.

15.It is unnecessary for me to say whether the appellant was fortunate or unfortunate in the case.  The issue is whether she brought suspicion on herself, as the Magistrate so found.

16.The Magistrate was apparently aware of the normal rule that order for costs in favour of an acquitted defendant should normally be made unless there are positive reasons for not doing so.  The fact that there was adequate evidence to bring a charge does not itself amount to a sufficient reason for depriving the person acquitted of his costs.  Any conduct relevant to the offence charged, including the strength of the case against him and the circumstances under which he came to be acquitted, can be taken into account so long as it does not call into question the verdict of acquittal. Usually the trial judge/magistrate is in the best position to weigh such matters.

17.The ultimate question in this appeal is whether the Magistrate exercised his discretion correctly as to costs in refusing the appellant her trial costs.  In considering whether to interfere with a costs order on appeal, the law is clear that unless the Magistrate took into account irrelevant considerations, his exercise of such discretion should not be lightly interfered with.

18.In the present case, there was no dispute that the appellant gave her explanations to the police voluntarily in the cautioned interviews as recorded in her records of interview.  In particular, in the third Record of Interview, she admitted she “knocked over some items” in PW1’s room.  She also admitted she and PW1 had “small push and shove and (she) possibly injured (PW1’s) leg.”  It amounted to confessions that the appellant damaged PW1’s properties and she caused injury to PW1 too. These admissions are matters that the Magistrate was entitled to take into account in deciding whether costs in favour of the appellant should be granted.  Having correctly applied the law, the Magistrate’s decision to refuse costs to the appellant was one which was properly open to him. 

19.In the circumstances, I am afraid that despite the able and persuasive submission of Mr Surman, this is not a proper case that I should interfere with the discretion of the Magistrate.

Conclusion

20.For the above reasons, the appeal against the Magistrate’s refusal to award costs is dismissed.

Costs of the appeal

21.At the conclusion of the hearing, Mr Cheung indicated that he would ask for costs of the appeal in the event that the appeal is dismissed.

22.Without hearing full arguments of the parties, I should only say that with all the background of the case borne in mind, it appears to me that this might not be a proper case to award costs against an unsuccessful appellant.  I therefore make an order nisi that there be no order as to costs of the appeal.  Unless parties indicate they want to be heard on the matter, such order shall become absolute after 14 days.

Mr Ivan Cheung, SPP of the Department of Justice, for the respondent

Mr G Surman, instructed by Boase Cohen & Collins, for the appellant