HKSAR v. Chan Wai Keung Lawrence (陳偉強)

FAMC No 64 of 2018

[2020] HKCFA 12

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 64 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCCC NO 30 OF 2018)

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Cheung PJ

Date of Hearing and Determination: 20 March 2020

Date of Reasons for Determination: 16 April 2020

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ:

1.At the conclusion of the hearing, we dismissed this application for leave to appeal. We now give our reasons.

2.The applicant had a relationship with X, a solicitor, since 2012.  It came to an end in 2016 after X apparently developed another relationship with a barrister, Mr Sio.  X alleged that on the night of 29 April 2016, the applicant assaulted her in her flat during a quarrel, after the applicant had found X and Sio together in the flat (apparently to discuss a court case).  This formed the subject matter of the first charge against the applicant in the criminal proceedings below.[1]

3.X also alleged that in the following morning, the applicant made her have oral sex with him by force against her will.  This became the second charge of indecent assault against the applicant.

4.The third charge that the applicant faced concerned an allegation by X that in the morning of 29 June 2016, the applicant had sex with her by force and without her consent.  This formed a rape charge against the applicant. 

5.The applicant stood trial for the three charges before Yau J sitting with a jury. The main prosecution witness was X, whilst Sio also gave evidence.  The applicant elected not to give evidence.  The jury returned a verdict of not guilty on all three charges.  The applicant by counsel then applied for costs pursuant to section 5 of the Costs in Criminal Cases Ordinance.[2]  In a brief ruling given on 15 November 2018, the judge refused the application:

“… The Court is of the view that the defendant brought suspicion upon himself and misled the prosecution into believing that the case against him was stronger. As can be seen in the WhatsApp messages between the defendant and X in Exhibit P6, the defendant kept bombarding X with such messages between 29 June and 4 July 2016, and quite a number of them were of an intimidating and threatening nature. In doing so the defendant no doubt brought suspicion upon himself and led the prosecution to more readily believe and rely on the allegations of X. …”

6.The applicant now sought leave to appeal from the judge’s refusal of costs pursuant to section 31(b) of the Hong Kong Court of Final Appeal Ordinance.[3]

7.In Tong Cun Lin v HKSAR,[4] this court examined the jurisdiction of the High Court to award costs in favour of an acquitted defendant after trial under the then section 73A of the Criminal Procedure Ordinance[5] and stated:

“The section as mentioned earlier, gives a wide discretion to the Trial Judge who, of all people, is in the best position to assess the large number of factors relevant to the exercise of that discretion. An application for an order for costs under s.73A(1) is a summary process, brought before the very judge who had presided over the whole case, and is not amenable to much elaboration and argument. It is not intended that, in the discharge of his function under s.73A, the judge should add substantially to the costs by entertaining lengthy submissions. His reasons for exercising his discretion – one way or the other – must necessarily be brief. It is only where it can be shown that the Judge has clearly gone outside the ambit of his powers – such as, for example, taking into account a factor which plainly is not relevant to the exercise of those powers – that an appellate court’s function becomes engaged.”[6]

8.Commenting on an appeal from the trial court’s refusal to order costs in favour of a successful defendant to this court pursuant to section 31(b), Litton PJ explained:

“In my judgment, the matter before us plainly comes within the scope of s.31(b). But, given the nature of the issues involved, it would be an extreme case before we would interfere with the Judge’s exercise of discretion on such a matter.”[7]

9.Having read the WhatsApp messages in question, we are not persuaded that this is such an extreme case where it is reasonably arguable that the judge has clearly gone outside the ambit of his powers when refusing to award costs in favour of the applicant.

10.All three charges allegedly took place during the period when the applicant and X were breaking up because of Sio.  As the judge observed, quite a few of the WhatsApp messages were plainly in the nature of intimidation and threat.  The applicant expressly or impliedly threatened unpleasant consequences to X, her firm or Sio if his demands (such as X resuming contact with him) were not met.  The WhatsApp messages suggested that the applicant was someone who was prepared to pester X with intimidating messages to impose his wish on her.   The judge was quite entitled to view all this as forming part of the supporting background to X’s allegations against the applicant for assault, indecent assault and rape. In particular, given the past relationship between the applicant and X, the main issue in relation to the indecent assault charge and the rape charge was one of consent. 

11.The applicant has failed to demonstrate a reasonably arguable case that the judge has clearly gone outside the ambit of his powers in refusing his application for costs. 

12.For these reasons, the application for leave to appeal was dismissed.

Mr Mughal Hanif and Ms Dorothy H W Cheung, instructed by K H Mak & Co, for the applicant

Mr Ned Lai, SADPP, of the Department of Justice, for the respondent