HKSAR v. Faruque Mohammad

HCMA 26/2019

[2019] HKCFI 1274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 26 OF 2019

(ON APPEAL FROM WKCC NO 4716 OF 2018)

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J U D G M E N T

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1.This is an appeal against an order of refusal of costs following the acquittal of the appellant on a charge of possession of dutiable commodities.

2.In the afternoon of 18 October 2018, a plainclothes officer stopped the appellant, a Form 8 holder, in the streets of Sham Shui Po, who was pushing a trolley transporting 5 carton boxes of goods. The officer found in the boxes dutiable commodities, namely 51,600 in total “Marlboro” heatsticks (e-cigarettes).

3.The appellant was subsequently charged with one count of possession of dutiable commodities[1]. The case was heard before the Acting Chief Magistrate, Mr. Victor So, sitting in the Western Kowloon Magistracy, and the appellant was acquitted but denied his costs by the court. He now appeals against that order.

4.Both on appeal as well as in the court below, the appellant was represented by the same private lawyer Mr. Pickavant. At trial, the appellant chose not to testify nor did he call any witnesses on his behalf. 

5.Mr. Pickavant argued in a nutshell that the case should not have been brought in the first place for, he said, the prosecution was not able to prove knowledge anyway on the part of the appellant about the nature of the goods in question, and thus, the appellant was entitled to costs occasioned by such a prosecution.

6.Mr. Chan, a public prosecutor for the respondent, pointed out that an acquitted defendant should normally be entitled to costs unless there are positive reasons to the contrary:

(a) an accused’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;

(b) there was ample evidence to convict but the accused was acquitted on a technicality which had no merit.

7.Regarding the first limb- suspicion- as described by Mr. Chan above, I think the conjunction there should be “Or” rather than “And”. In dealing with a similar case with the only difference that the charges were withdrawn before trial, the Court of Appeal said in the case of Lam Chiu Fong & Others CACC 71/2008:

“Para.42 It seems to me that in cases where charges are withdrawn, the starting consideration is the same as that established by the authorities, to which Stuart-Moore VP and Beeson J have referred above, where there has been an acquittal, namely, that there should be an award of costs in favour of the person charged unless there is positive reason for making a different order. Where the essential facts are realistically in dispute, and the person charged has not by his conduct brought suspicion on himself or led the investigating authorities to believe that the case against him was stronger than in fact it was, then when a charge is withdrawn the costs discretion ought to be exercised in favour of that person.” (Boldness/underline added)

8.In denying the appellant’s costs, the learned magistrate has this to say (See paragraph 19 of his Statement of Findings):

“In the present case, firstly, the defendant was found pushing a trolley on which a large quantity of illicit heatsticks was found in Sham Shui Po area. The act alone was no doubt highly suspicious. Secondly, as I found, he was untruthful and selective in the cautioned interview conducted by the police. Having considered all the circumstances and submissions, I found that there was positive reason to deprive of the defence costs and I exercised my discretion against the defendant. The application was therefore refused.”

9.The only question to be asked on this appeal is- does “what the appellant did in the circumstances of the case” amount to bringing suspicion on himself?

10.In the subsequent interview with the police after his arrest, the appellant told the officers that the goods belonged to his friends, Mithu and Nasir, they were older than him; he bumped into them while they were pushing the trolley, and as a gesture of good will, he helped them by pushing it for them only to be arrested a couple of minutes later. His friends were right behind him at the time and the three of them were in fact on their way to have tea together. 

11.He further told the officers that he had no means of contact with his friends nor did he know where they lived; he could only give the police a very general appearance of his friends that would lead the police to nowhere. When the police started probing into the details of his friends, he refused to answer any more question.

12.Assuming for a moment the appellant believed the things inside the boxes to be legit, when he was stopped by the police, he was just within a stone’s throw of his friends, and they were the owners of the goods, one would expect him to alert the officer to his friends who, from the appellant’s perspective, could explain the whole thing away and get him out of trouble. Anyone in their right senses would have done so; curiouser and curiouser he didn’t do it. Did that not tell us something about his knowledge of the goods in question?   

13.Given the case as it is, I couldn’t agree more with the learned magistrate’s observation that the act of pushing the trolley full of dutiable commodities, which in itself was suspicious enough. His unforthcoming behavior about his friends back in the police station could only add to the suspicion. The appellant clearly has brought suspicion on himself in the instant case.

14.The learned magistrate was right in refusing costs to the appellant; he has not taken into account one single factor which is not relevant to the excise of his powers. I see no reason to interfere with the exercise of his discretion.

15.That being the case, the appeal must be dismissed.

Mr Chan Tin Lok Alan, PP of the Department of Justice, for the respondent

Mr John Pickavant, of John M Pickavant & Co, for the appellant