HKSAR v. Chu Wai Man

HCCC 24/2017

[2019] HKCFI 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 24 OF 2017

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D E C I S I O N

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Introduction

1.This is an application under section 5 of the Costs in Criminal Cases Ordinance, Cap 492 (“the CCCO”), for the costs of the 2^nd defendant (“D2”) arising from his acquittal by a jury on 27 November 2018, on four counts of trafficking in a dangerous drug. 

2.That section gives the court a general and wide discretion to award costs to a party in criminal proceedings as it reads:

“Where after trial in the District Court or the Court of First Instance a defendant is acquitted, the District Court or the Court of First Instance may order that costs be awarded to the defendant.”

3.The award of costs in such circumstances falls within the discretion of the court.  The section does not lay down any criteria for the exercise of that discretion.  In Cheng Kam Kuen v HKSAR HCAL 92/2004, Cheung J (as he then was) examined the interpretation of the previous legislation by reference to R v Kwok Moon‑yan [1989] 2 HKLR 396, in which the Court of Appeal had occasion to deal with section 83XX of the Criminal Procedure Ordinance, Cap 221 (“the CPO”).  That section has since been replaced by the provisions in the CCCO.  Section 83XX gave the court a discretion to order the payment out of the public revenue of the costs of a successful appellant.  Silke VP, giving the judgment of the court in Kwok Moon-yan, said at page 400H-I:

“We emphasise that the exercise of the power provided by s. 83XX is in the unfettered discretion of the Court, and falls to be exercised in the light of the circumstances of each particular case, but the normal practice is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order.”

4.The issue before the court, is whether there are positive reasons for making a different order.  In Kwok Moon-yan, Silke VP identified one positive reason for not making such an order to be where the appellant’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.  He clarified that particular example did not necessarily mean that there must be both a bringing of suspicion and a misleading, before a successful appellant would be deprived of his costs.  He explained that if the court took the view that a man had brought suspicion on himself, or having done that, he had also misled the prosecution, either by the very bringing of that suspicion, or some other matter, into thinking the case against him is stronger than it is, then these, either separately or combined, would be factors which lie for the consideration of the court in the exercise of its discretion.

5.Cheung J also referred to the leading case of Tong Cun Lin v HKSAR [2000] 1 HKLRD 113, in which the Court of Final Appeal dealt with section 73A(1) of the CPO.  This too has been replaced by the provisions in the CCCO.  Litton PJ, delivering the leading judgment of the court, said at page 117E-J as follows:

“The legislature in empowering the court to award costs has not laid down the conditions under which the broad discretion under s.73A(1) should be exercised. The court must therefore by construction fill the gap. What then are the governing principles? When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not‑guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

6.Mr Leung on behalf of D2 accepts the above principles and submits that D2 has never brought suspicion upon himself or misled the prosecution into thinking that the case against him was stronger than it was.  He relies upon the defence case in trial and that the verdict of the jury must support a finding by the jury that such case was true or may be true.  He goes further than that and submits that the jury must have found that D2 had no knowledge of what was in the parcels in question and that he could not have made the confessions as alleged by the prosecution.  I venture to say that that is perhaps too high a standard and that he may be better placed to submit that the result suggests a range from, at the very least, the jury could not be sure of D2’s guilt, to the jury (by a majority of 5:2) found that the defence case was, in all respects, true.  In any event, it is not the place of this court to seek to go behind that verdict or to come to its own conclusions upon their verdict.  As Litton PJ said in Tong Cun Lin, in the face of opposition from the prosecution it is for this court to consider the investigation; the defendant’s conduct during that investigation; any answers he gave to the authorities and the consistency of those answers with his subsequent defence in trial.  I also suggest, in the context of this case, the court should add to that list consideration of the manner in which the defence ran the voire dire.

7.Mr Laskey, on behalf of the prosecution, submits that whilst D2’s right to silence is to be respected, D2 had been the subject of observation during the relevant period, he made admissions to the officers upon arrest and caution and gave evidence in an eight‑day voire dire.  At no stage did D2 raise the issue of the presence of a third party who was connected to the premises in question and he positively asserted that he was the person who arranged for the 1^st defendant (“D1”) to post the relevant parcels.

8.There is also the further issue of whether D2 is entitled to the whole of his costs, both of the voire dire which took place between 1 and 13 March 2018 and the trial, which took place between 5 and 27 November 2018.  During the voire dire, D2 was privately represented by

The prosecution case

9.The prosecution alleged that Mak Chiu‑may (D1) and Chu Wai‑man (D2) were sending methamphetamine hydrochloride (commonly known as “Ice”) to Australia secreted within packets of plastic beads.  D2 was charged with four counts of trafficking in a dangerous drug between 18 and 25 April 2016.  Counts 1 to 3 were charged along with D1, who was the person physically posting the packages on 18, 22 and 25 April 2016.  Count 4 reflected the dangerous drugs found in the relevant premises, which I will refer to as Dawning Views.  The customs had carried out observations between 18 April and 25 April.  They had observed D1 posting the package under Count 1 in the post office at Gillies Avenue and they had seen her being driven away by D2.  Prior to the arrest on 25 April, the customs were not aware of the package which was posted on 22 April but they were aware that dangerous drugs were being supplied out of an unknown address in Dawning Views and they carried out observations upon that complex on 25 April.  They identified D2’s vehicle as being in the car park at Dawning Views and they followed the car to Tin Yiu Plaza where they observed D1 take out a parcel from the car which she later attempted to post.  CCTV footage connected all three parcels to D1 and thereafter D1 was connected to D2 who was seen to drive her on two occasions including the day of arrest.  The box in her possession was found to contain Ice.  They also recovered telephone communication between D1 and D2 through telephone communications at the relevant time.  Upon arrest, a utility bill for a flat within Dawning Views was found in D2’s car which did not bear his name.  He was also in possession, they say, of the key to the flat in question and several blank speed post address labels which contained serial numbers linked to the speed post labels on the parcels in Counts 1 to 3. A search of Dawning Views found what amounted to a packaging factory with drugs and plastic toys.  The flat itself appeared to be uninhabited, at least on a residential basis.  Upon arrest and caution D2 made admissions.  He said the dangerous drugs were Ice and were to be sent to Australia.  Under interview, when legally represented, he refused to answer questions as is his right.

Chronology of events

10.The defendants were committed for trial on 23 January 2017.   They appeared before Wong J on 18 December 2017 for a pre-trial review (“PTR”) but counsel for D1 had only recently been instructed and a second PTR was fixed for 25 January 2018.  Mr Chan, on behalf of D2, had submitted a PTR questionnaire on 8 December 2017, in which he indicated that D2 objected to the admissibility of his various confessions; had no connection to or knowledge of the dangerous drugs and there was a factual dispute as to where the drugs which were the subject of Count 3 were found.  There was to be a voire dire at the beginning of trial.  The trial was therefore, on an indication from counsel, set down for 15 days commencing 1 March 2018.  Whilst Mr Chan, on behalf of D2, indicated he required the attendance of PW 1 to 9 in trial, he asked for the attendance of PW 1 to 7 for the purposes of the voire dire.  At that stage, Mr Chan submitted the voire dire would take three days including submissions.  He indicated the trial would take eight to ten days.

11.The second PTR took place on 25 January 2018 before this court.  An informal identity parade took place on that day and defence counsel indicated that six or seven witnesses would be required for the voire dire.  The first day of trial was 1 March 2018.  Defence counsel now said the voire dire would include D2 and one defence witness but the court would be able to empanel the jury by 5 March.  The prosecution, having had sight of the Grounds of Objection, were to call four witnesses in chief and to tender three others.  There was no indication at this stage that the trial dates as set down, would not be effective.

The voire dire

12.In the end the voire dire took some eight days.  The Amended Grounds of Objection concentrated upon what occurred upon arrest; the journey to Dawning Views; the house search at Dawning Views and at D2’s home address in Tai Wai, as well as what occurred at Customs Headquarters.  There was no mention at any stage of a third party.  The objections are covered extensively in my ruling of 13 March 2018.  In essence however, D2 maintained he was assaulted and verbally abused by officers at various stages and that threats were made against his family.  He maintained he had made no admissions at any stage and was asked to sign various documents which he had not been allowed to read.  At no stage whilst inside Dawning Views did he indicate he had nothing to do with the address or that it was rented to a third party whose name and telephone number he knew.  It was not part of his case in the voire dire that he was merely a driver for the occupant of the flat.  Although this issue would not have been relevant to the question of voluntariness, it would necessarily and logically have arisen as part of the general background facts during the case as put by Mr Chan.  It did not.

13.Ultimately, and for the reasons given, the oral admissions and notebook were ruled admissible.  The prosecution did not seek to rely upon the video-recorded interview as D2 had declined, as is his right, to answer the majority of questions.  Because the voire dire had taken far longer than the court had anticipated, the trial could not continue and had to be adjourned until 5 November 2018.

Further PTR

14.A further PTR was held on 17 August 2018.  By this date, Mr Chan was no longer instructed.  D2 had sought legal aid and Mr Leung appeared on his behalf.  The Admitted Facts were not yet ready but both counsel indicated the general nature of the evidence to be admitted.  The prosecution gave an estimate of six days for their case and the defence added a further three days for its case making nine days in total.  Having sat through the voire dire, in view of the anticipated case to be rehearsed before the jury, the court took the view that timescale was unrealistic and set the matter down for 20 days.  Mr Leung did not amend the original PTR questionnaire.  There was still no indication that the defence case included a third party operating out of Dawning Views.  The prosecution were entitled to believe that they had strong evidence against D2 given the admissions he made and the CCTV footage plus the admissions to be made in respect of the posting of the parcels.  The case appeared to turn upon knowledge alone and his connection to the flat and the drugs recovered therein as opposed to any suggestion that D2 was running a positive case as to who, in fact, lived in the flat.

The trial proper

15.The trial proper commenced on 5 November 2018.  The prosecution case lasted 11 days and there was a half time submission by D1 which was successful.  It was only with PW6, Chief Customs Officer Tsang Kam-kong on 19 November and Day 11 of the trial (just before the close of the prosecution case), that Mr Leung raised the issue of there being a different identifiable resident of the flat.  He had not alluded to that previously.  He had certainly not alluded to a female presence in the flat.  PW6, and PW7, Customs Senior Inspector Chang Man‑kit, had not made witness statements and had been tendered at the request of the defence.  To PW6, Mr Leung simply suggested no serious attempt had been made to find the true resident of the flat without more.  He did not suggest who that resident was or the sex of the resident.  To PW7, it was suggested that he knew that the resident of the flat was a woman; that she spoke Punti with a mainland accent and that she was approximately 40 years of age and mainland Chinese.  He also suggested that they had obtained the key to the flat from a Madam Wong.  The true existence and importance of Ms Wong was only introduced within the defence case when D2 elected to give evidence.  The defence case took four days.  No other witness was called.  His case was that he operated an unlicensed driving business.  He had been introduced to a mainland woman, Ms Wong, the previous October and thereafter she hired him to drive her about once a week.  It was not until March 2016, that he went to her flat in Dawning Views.  He had been driving her to go shopping for toys and he had helped her by taking the toys up to the flat.  Because he needed to make more than one journey up to the flat from the car park, she had given him an Octopus card which allowed him to gain resident access to the block.  He said that whenever the CCTV caught him with boxes these were toys purchased by or for Ms Wong.  On 15 April, she had asked him to post something for her and had done so again on 18 April and subsequently.  He would pay the postal costs and then give her a receipt.  As he does not read English he did not know what the parcels said.  He had asked D1, who was his friend, to post the parcels as parking at the various post offices was a difficulty.

Conclusion

16.This court is mindful that the normal order on an application for costs after an acquittal is for costs to the defendant.  It is also mindful that it should not be seeking in some indirect way to penalise the defendant because the court takes a view of the evidence which is dissimilar to that of the finding of the jury.  It is incumbent upon the court to look at this application dispassionately and objectively, weighing up the usual rule against what the court knows of the background to this matter.  In so doing, the court has taken into consideration the evidence presented as to how the arrest came about and the attitude of D2 in the investigation process whilst at all times mindful of his right to silence.  It has also taken cognisance of the assistance and indications provided by counsel at not one but three PTRs and the evidence given in both the voire dire and the trial.  Last, but not least, the cross‑examination of both Mr Chan and Mr Leung in foreshadowing what the prosecution believed to be a strong case against D2.

17.Mr Leung has accepted that up to the point in trial, on Day 11 in fact, the existence of Ms Wong was wholly unknown to the prosecution.  As a matter of strategy, Mr Leung, on behalf of D2, chose to keep his powder dry in that respect and the court certainly had no inkling of what was to come.  Up until that point, the only characters in this scenario were Mak Chiu‑may and Chu Wai‑man.  The evidence against D1 was slim.  The prosecution had no evidence of her knowledge of the contents of the boxes and there was going to be positive evidence from D2 that her role was simply to post parcels and no more.  That had been intimated throughout the cross‑examination on the voire dire.  That being the case, there was no one else on the face of it who could have been responsible for the flat nor the factory within other than D2.  There had been no opportunity to canvass other CCTV for the mainland visitor who appeared to be living, at least some of the time, in the flat, a flat which appeared to have a wholly different tenant. 

18.This court ruled the relevant admissions admissible under the voire dire which lasted some eight days.  That application was unsuccessful for the reasons given and I see no reason why those eight days and the preparation for them should not lay at the door of D2.  The trial proper would have been premised in a wholly different way if the prosecution had any indication of the defence to be run by D2, with the first hints being given of Ms Wong on 19 November, some 11 days into trial.  I do not criticise D2 for deciding to keep entirely quiet about his defence, in the end it stood him in good stead as he was acquitted 5:2.  But that is quite different from now saying that he should be given his costs of the trial.

19.The manner of the cross‑examination gave no indication to the prosecution of such a defence.  There was ample evidence which brought suspicion upon himself and thereafter D2 did nothing which could have altered the view of the prosecution that they had a very strong case indeed.  I refuse D2’s application.

20.The costs of this application be to the prosecution.

Mr Edward Laskey and Mr Kenny To, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Jim & Co, assigned by the Director of Legal Aid, for the 2^nd defendant