HKSAR v. Yadav, Dilip Prasad

HCMA 64/2022

[2022] HKCFI 1961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 64 OF 2022

(ON APPEAL FROM STCC 2649/2021)

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BETWEEN

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  21 June 2022

Date of Judgment:  30 June 2022

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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 taking employment while being a person in respect of whom a removal order is in force.

2.Just before noon on 31 August 2021, immigration officers conducted an operation targeting 2 restaurants in Chung King mansions which were side by side on the 1^st floor.  An immigration officer observed the appellant wearing an apron and frying some food whilst stood in front of a stove holding a ladle and a spatula in the most inner kitchen area of a kebab house restaurant.  There were 2 kitchen areas.

3.A check revealed that the appellant was a form 8 recognizance form holder who had arrived in Hong Kong as a visitor on 8 November 2014.  He had surrendered himself to the Immigration Department on 8 January 2015 and was released on recognizance on 24 February 2015.  A removal order was issued against him on 13 November 2017 which was served on him on 11 January 2018.  The removal order remained in force on the material day.  It is unlawful to take employment whether paid or unpaid whilst being a person in respect of whom a removal order is in force.

4.The appellant was subsequently charged and the case heard before the learned deputy magistrate Mr Tse Sung Pan, sitting in Shatin magistracy.  The defendant was acquitted but denied his costs by the magistrate.  He now appeals against that order.

5.In the court below and at the appeal hearing, the appellant was represented by Mr William Allan.  At his trial, the appellant elected not to give evidence nor did he call any witnesses on his behalf.

6.Admitted facts were produced as P7 in the trial. The appellant’s status in Hong Kong as well as the removal order issued against the defendant were admitted.  It was admitted that the removal order was served on the appellant on 11 January 2018.  It was agreed that the appellant was arrested inside that kebab house restaurant for the offence of taking employment while being a person in respect of whom a removal order is in force.  He showed the arresting immigration officer his recognizance form.  8 photographs taken inside and outside of the restaurant were produced and admitted.  A sketch of the layout of both restaurants and their kitchens was admitted, P5 and 5A.  It was also admitted that the defendant had a clear record in Hong Kong.

7.The prosecution case was not challenged.  The only witness called was the arresting immigration officer and his witness statement was submitted pursuant to section 65B of the Criminal Procedure Ordinance Cap 221 and marked P8 and P8A.  The evidence against the appellant was that at the material time, at 12:06 PM, lunchtime, he was seen cooking in one of the 2 kitchens of a kebab Restaurant.  On the door of the said kitchen were words in Chinese that said “please do not enter unless you are a staff member of the company” and English words that said “staff only”.  There was also a picture of a man walking with a red line across the man which indicates no entry inside the kitchen.

8.It was not disputed that the appellant was cooking with a ladle and spatula inside that kitchen.  The observation of the appellant was only 10 to 15 seconds.

9.There was nobody else cooking in either of the 2 kitchens which were described as an outside kitchen and the inside kitchen by the immigration officer; the appellant was observed cooking in the inside kitchen.  The immigration officer said that the owner was not present in the restaurant.

10.Under cross-examination, the arresting immigration officer agreed that the appellant did not admit he was working there.  His evidence was that he asked the appellant if he was an employee there but the appellant did not answer.  He did agree that the appellant said in broken English that he did not work there.  In the witness statement, he recorded that the defendant remained silent under caution.

11.The learned magistrate acquitted the appellant because he found that he could not draw the only irresistible inference that the appellant was working as a cook in the restaurant.  It was suggested by Mr Allen that there was an alternative inference to be drawn and that was the appellant was cooking food for himself with the permission of the owner of the restaurant.

12.Consideration was given to the fact that the arresting immigration officers observation was for only 10 to 15 seconds, there was no evidence whether anyone else was inside the restaurant with the appellant, there was no evidence as to why he was there cooking and that the food he was cooking was to be served to customers.  The learned magistrate considered there was no evidence as to the relationship between the appellant and the owner of the restaurant or person in charge and was unable to draw the irresistible inference that the appellant was employed in that restaurant.

Learned Magistrate’s reasons for refusing costs

13.An application for costs was made following the acquittal but the magistrate considered that there were positive reasons to refuse an award of costs despite the acquittal.  He refused the application on the ground that the applicant brought suspicion upon himself.  He said the undisputed evidence of the observation of the appellant was highly suspicious.

14.The appellant’s conduct at the investigation and trial stages were considered relevant and his refusal or failure to disclose his defence or offer an explanation during the investigation was also taken into account.  The magistrate noted that the appellant did not offer any explanation as to his conduct and presence during the investigation.  During the trial itself, the appellant elected not to give evidence but it was Mr Allan who submitted in closing submissions that the appellant could have been cooking for himself with the permission of the owner.

15.Therefore, the lack of an explanation during the investigation stage as well as the undisputed fact he was wearing an apron and cooking in a staff only restaurant kitchen during lunchtime was what the magistrate found as a positive reason for concluding that the appellant had brought suspicion upon himself and refused his costs application.

Grounds of appeal

16.Mr Allen relied on 3 grounds in his perfected grounds of appeal but he agreed during the hearing that that all 3 grounds could be dealt with together.  Essentially all 3 grounds complain that the magistrate had erred in refusing to award costs to the appellant when he had found there was insufficient evidence to prove the prosecution’s case beyond reasonable doubt.

17.Mr Allen made much of the fact that he had made a submission of no case to answer after the close of the prosecution case.  The magistrate found that there was a case to answer.  Mr Allen repeats in his submissions that the magistrate had found a “bare case to answer” to support his submission that the defendant had therefore not brought suspicion upon himself.  This repeated reference to a “bare case to answer” does not tally with the available transcript in the bundle.  Nowhere does the magistrate himself use that word or phrase.

18.The respondent argues, and it as an argument that is not without merit, that not only did the appellant obviously bring suspicion upon himself by cooking in a kitchen in a restaurant where only staff were allowed at the material time, but that there was more than enough evidence to convict him.  The learned magistrate’s reasons for acquitting the appellant included speculating without any evidential basis on the possible defences that might exonerate the applicant.  It was submitted that this is not the court’s duty and on the unchallenged prosecution’s evidence the defendant should have been convicted.

19.In any event, the issue in this appeal is not whether there was a strong case to answer or only just a case to answer or enough evidence to prove beyond reasonable doubt the appellant committed the offence and therefore should have been convicted but whether or not the appellant’s behaviour when arrested, during the investigation or the trial process had brought suspicion upon himself.

Discussion

20.The learned magistrate correctly identified the principles involved in an application for costs upon an acquittal.  A court has a wide and general discretion in awarding costs.  Normally costs should be awarded to an acquitted defendant unless there are positive reasons for making a different order.  For example, a positive reason will be, as identified by the magistrate to be the case here, where a defendant has brought suspicion upon himself.  Another positive reason would be where a defendant by his conduct has led the prosecution to believe that the case against him was stronger than in fact it was.

21.The magistrate did take into account appellant’s conduct which formed part of the setting for the charge laid against him.  He took into account such conduct in the exercise of his discretion on costs following an acquittal.  He also took into account that given the appellant’s conduct was highly suspicious, by not offering an explanation at all during the investigation, such as the one suggested by Mr Allen in his closing submissions, the appellant brought suspicion upon himself.

22.He referred himself to Cheng Kam Kuen v HKSAR HCAL 92/2004 where Cheung J (as he then was)  held that although the right of silence is a fundamental part of common law and must be jealously guarded, this does not mean under no circumstances can the refusal or failure to disclose one’s defence or proffer an explanation at the investigation stage, done in the exercise of the right of silence, be taken into account by the court in considering costs following an acquittal.

23.This means in considering whether an accused has brought suspicion upon himself so as to deprive him of costs, it is legitimate for the magistrate to consider the manner in which he behaved during the investigation stage.  Provided that in the magistrate’s weighing exercise in considering costs, he gives sufficient due regard and weight to the fact that it is a fundamental constitutional right for the defendant to remain silent.

24.The magistrate also referred himself to Koo Kwok Yee v Secretary for Justice [2011] 6 HKC 345 where Au J (as he then was)  affirmed the decision in Cheng Kam Kuen and held that in the circumstances of that case where there was evidence to show that the accused was highly suspicious, it is fully open to a court to conclude that by remaining silent during the investigation when conduct is very suspicious, the accused had by his own conduct brought suspicion upon himself.  This does not amount to any infringement of an accused’s right of silence, which deals with proving guilt.  The lack of explanation goes towards the question of whether or not to award costs, not the question of guilt or innocence.

25.As noted in that last case, there are authorities decided in Hong Kong and elsewhere in the Commonwealth that in considering whether the accused has brought suspicion himself which may deprive him of costs, it can be legitimate for the trial judge to consider the manner in which he behaved during the investigation stage which may include taking into account the defendant’s conduct in remaining silent.

26.The magistrate here was entitled to take the defendant’s conduct in remaining silent into account and he clearly was aware that he had to give sufficient due regard and weight to the fact that it is a fundamental constitutional right when he considered costs.

27.How much weight, if any, should be attached to the refusal or failure to explain depends on the circumstances of every individual case and whether it is such an appropriate case.  Here, the applicant did not reveal why he was cooking in a restaurant kitchen and this, when the evidence was otherwise so suspect, brought suspicion to himself.

28.Given the undisputed evidence, I entirely agree with the magistrate’s observation that his presence and conduct in that restaurant kitchen during lunch hour when one could buy lunch from that outlet was very suspicious.  I agree that for the question of costs, his lack of explanation only added to that suspicion.  He clearly brought suspicion on himself in this case.

29.I find the magistrate was right in refusing to award costs to the appellant.  I do not find any error in his consideration nor do I find he has given consideration to matters which are irrelevant.  I see no reason to interfere with the exercise of his discretion.

30.Therefore, the appeal must be dismissed.

Mr William Allan, instructed by Mohnani & Associates, for the Appellant

Miss MOK Wan Yin, Winnie, Senior Public Prosecutor, of the Department of Justice, for the Respondent