HKSAR v. Leung Kai Ming

CACC000174/1997

IN THE HIGH COURT

OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 174 OF 1997

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Coram: Hon. Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 9 December 1998

Date of Judgment: 9 December 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. In this matter, the Applicant pleaded guilty to two charges of trafficking in a dangerous drugs. The first particularised that on 24th October 1996, at the G/F, Po Ning Building, No. 15, Nelson Street, he unlawfully trafficked 127.43 grammes of a mixture containing 14.42 grammes of heroin hydrochloride. The second particularised that on the same day, at Room No.2, Flat D, 2/F, Po Ning Building, Nelson Street, he unlawfully trafficked 62.64 grammes of a mixture containing 26.73 grammes of heroin hydrochloride.

2. He pleaded guilty to those charges and the facts which were admitted as follows:

"On the day charged, police officer carrying out anti-drug surveillance operation saw the Applicant, intercepted him, and then searched him and on his left front pocket was found the drug subject to the first charge. Upon the arrest and caution, he said: 'Ah Sir, would it be taken wrongly? It is just for my own consumption. There is no need to arrest me for trafficking in drugs'. He was then taken to the premises, it was searched which was mentioned in the second charge with keys which were seized from him were used to open the door.

Upon entry, a green lighter and a wad of banknote totalling HK$20,200 were found on the mattress, unused hypodermic syringes, 2 syringe needles, a pair of red scissors and a roll of tinfoil were found on the floor.

A further search revealed six plastic bags of suspected dangerous drugs wrapped in tissue papers and a scale hidden inside the fluorescent light holder at the ceiling of the toilet. He was then arrested and cautioned for the second defence, he insisted that the drugs were for his own consumption.

3. The trial judge when sentencing said

"In my view, the appropriate overall sentence in your case is one of 6 years' imprisonment after trial. The only matter that provides mitigation of your offences is the fact that you pleaded guilty, and I am prepared to give you a full discount of one-third discount".

The judge then ordered that the exhibits be disposed of with the exception of $20,200, out of which he ordered the defendant to pay $15,000 towards the costs of prosecution.

4. The transcript reveals that the order for payment of costs came about in a somewhat unusual way.

The judge said, after the prosecution had outlined the personal history of the defendant: "Will the Crown be making any application in respect of the money found at the premises?"

Mr. Lee, prosecuting counsel then said: "Yes, I have prepared a list of all exhibits. I submit to the court for your reference."

Court: "You're suggesting that this money was the proceeds of drug trafficking, are you?"

Mr. Lee: "I did have instruction. I still do have the instructions from the police O/C case, my instruction is to forfeit the $20,000 because it was found lying in there casually. That's what we have. That's all we have."

The matter was again referred to, when the court said to the defence counsel: "Do you have anything to say, Mr. Tsang, about the proposed method of disposal?"

Mr. Tsang: "Yes, I would object for the forfeiture of $20,000 on the ground that there is no evidence to show that the money derives from the .... is the profits of trafficking."

Court: "Do you want to say anything about that?"

Mr. Lee: "No. I think I'll leave this. As I have submitted to your Honour earlier, apart from finding the money lying in bed inside the defendant's premises, there is no further evidence to show that the money really derived from the sale of drugs or any connection with the drugs either found or otherwise. So I've nothing more to say."

Court: "You've nothing more to say, Mr. Tsang, about anything .... any of the other orders requested by the Crown?"

Mr. Tsang: "I have nothing to say."

Court: "Mr. Lee, I'm minded to make an order that the defendant contribute towards the costs of prosecution. Are you able to give me any figure as to what that might be?"

Mr. Lee: "Even my O/C case is unable to assess the costs involved in this present operation involving the defendant. I leave the matter entirely in your hands."

Court: "Well, I think you can give me some idea, perhaps, of the legal costs that might be involved in."

Mr. Lee, "If we ... I think with the operation of that magnitude involving six or seven police officers, including Inspector Yau, I think the costs up far is .... must be exceeding $20,000."

The Judge then ordered "that the defendant pay $15,000 towards the costs of his prosecution to be deducted from the $20,200."

5. It is now suggested that the judge wrongly exercised his discretion because he based his order of costs not upon the legal costs involved but upon the costs of the police operation. It is not completely clear that he did so but it may well been the case. It would have been better, in our view, had he gone on and dealt with the confiscation order. That is not, however, to say that he did not have power to make the order which he did. As we have said it appears that he may have exercised his discretion wrongly. If that be so there is no argument that we must substitute our discretion for that of the trial judge.

6. Mr. Mackay, for the Applicant submits that it would be against public policy to make an order for costs after plea in a case such as the present one. The public policy which he invokes is the encouragement of offenders to plead guilty at the earliest opportunity. He submits that if there is a real possibility of costs being awarded there would be no incentive to plead guilty.

7. We cannot agree. If money is available, there is no reason in public policy or otherwise why a costs order should not be made. The judge has power to make that order and as long as he acts correctly within his discretion, then he can do so. If the judge was wrong, in the present case then we are satisfied that it would be a proper exercise of our discretion to award costs. There is further we are satisfied no doubt that the costs involved would have been well in excess of the amount ordered.

8. We are satisfied that the circumstances are such that an order that the Applicant contribute to the prosecution costs could properly be made. The order of the judge will, therefore, remain undisturbed.

Representation:

Mr. D.G. Saw, S.C., leading Miss. Denise Chan (D.P.P.) for the Respondent

Mr. Graeme Mackay assigned by D.L.A. for Applicant