HKSAR v. Ahmed Raza

HCMA 374/2022

[2023] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 374 OF 2022

(ON APPEAL FROM KCCC 425 OF 2022)

__________________________

__________________________

________________

J U D G M E N T

________________

1.The Appellant was tried in the lower Court on one count of “using an identity card relating to another person” (“Charge 1”), one count of “taking employment while being a person in respect of whom a removal order is in force” (“Charge 2”) and one count of “theft” (“Charge 3”). To these charges he had pleaded not guilty.

2.After the learned Magistrate heard the evidence of the Prosecution, he ruled that there was no case to answer in respect of Charge 3, but that there was a case to answer on Charges 1 and 2. As a result of that, the Appellant decided not to give evidence nor to call any defence witness. The learned Magistrate after considering the evidence before him, then acquitted the Appellant of the charges.

3.The Appellant on his acquittal, applied for costs.

4.The learned Magistrate refused the application for costs, and thus the appeal before me today.

5.Very briefly as far as the facts were concerned, was that the polices were called to the scene, where they found the Appellant. The scene was a flat under decoration. As part of the Prosecution’s case, they called two witnesses. However, as far as these two lay witnesses were concerned, they were found to be “inherently improbable”, “unbelievable” by the learned Magistrate.

6.As Mr Allan had submitted, there was no question that the learned Magistrate was totally not satisfied with any of the lay witnesses. As a result of that, he found the Appellant was not guilty of those charges.

7.At the end of the Statement of Findings of the learned Magistrate, where he then dealt with the costs application, at paragraph 23, the learned Magistrate said:

“I enquired the prosecution of the defendant’s conduct at the investigation stage, and I did not find anything that should be taken into account in considering costs.”

8.The learned Magistrate then, at paragraph 24 of the Statement of Findings, said the Appellant did not deny that he was a Form 8 holder and could not work. There was no evidence to explain the presence of the Appellant at the material location immediately before the time of arrest. There was no dispute that renovation works were underway at the material location.

9.At paragraph 25, the learned Magistrate concluded that a person who is not entitled to work in Hong Kong, by being present at the material location at least immediately before the time of arrest where renovation works were underway, the Appellant had brought suspicion upon himself. Therefore, the learned Magistrate refused the application for costs.

Discussion

10.The crux of this appeal is whether the learned Magistrate could on the basis of the evidence before him, find that the presence of the Appellant at the material location, was in any way an act which brought suspicion upon himself. As Mr Allen had pointed out, that in fact the Appellant upon arrest had said that he was called to the scene by one of the two lay witnesses.

11.At the end of the day, the learned Magistrate had found the two lay witnesses to be totally incredible. The fact that they called him to the scene did explain why he was found at the scene. They had also called the police to come, it was not a matter of the police coming upon this location to observe the Appellant being on site. So it thus, as Mr Allen put it, give rise to some suspicion that it was all a setup.

12.Therefore, in the circumstance, the Appellant should be entitled to his costs.

13.On costs application, every case is different and fact specific, and on the evidence before the learned Magistrate, I cannot find that the Appellant in this case had brought suspicion upon himself in any way.

14.So I will allow costs to the Appellant, both for the trial and for this appeal, to be taxed if not agreed.

Mr Wilson Choi, SPP of the Department of Justice, for the Respondent

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