HKSAR v. Ali Rustam

HCMA 512/2021

[2022] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 512 OF 2021

(ON APPEAL FROM STCC 1895 OF 2021)

__________________________

__________________________

Before:  Hon Toh J in Court

Date of Hearing:  9 September 2022

Date of Judgment:  9 September 2022

_______________

J U D G M E N T

_______________

1.This is an appeal against the order of the learned Magistrate refusing costs to the Appellant.

2.The Appellant was charged with taking employment while being a person in respect of whom a removal order was in force.

3.The case for the Prosecution relied on the observations of PW1. He gave evidence about how he noticed the Appellant had gone into the parked vehicles where goods were being moved around.

4.Subsequently, the learned Magistrate after considering and assessing the evidence, decided that he could not accept the evidence of PW1, apart from the observation being too brief, he said that he could not safely rely upon the evidence of PW1.

5.The learned Magistrate said at paragraph 19 of his Reasons for refusal of Costs that the Prosecution bore the burden of proof, which is correct, and he said he took the view that the Appellant might have an innocent reason for being present at the scene.

6.However, as Mr Leung, counsel for the Appellant pointed out, the learned Magistrate subsequently seemed to resile from his initial findings of facts in his refusal for costs. So there was inconsistency as to the basis for his refusal of costs. I therefore find that the learned Magistrate exercises of his discretion did not appear to be based on any reasonable view of the facts.

7.I have read the documents. This is a case where costs should have been awarded to the Appellant. The learned Magistrate seemed to have suggested that the Appellant should have gone into the witness box to give evidence[1] but in the following paragraph resiled from that view. It was therefore difficult to understand the basis for refusing costs.

8.I considered, therefore, that it is right that the Appellant should be awarded costs in the trial below and on this appeal. Costs to be awarded is to be taxed if not agreed.

9.I must also add that I do not wish to see any unfounded allegations of “racial profiling” made against the witness or prosecution by the defence. It does not give credit to the profession to do so. The baseless attack on the Prosecution made by Mr Leung in his written submission is totally unfounded and of no credit to the profession which Mr Leung belongs.[2]

Ms Winnie Mok, SPP and Ms Kathy Sum, PP of the Department of Justice, for the Respondent

Mr Andrew Leung, instructed by Chaudhry Solicitors, for the Appellant