HKSAR v. Elthaf, Chaudhry Muhammad

HCMA 231/2022

[2023] HKCFI 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 231 OF 2022

(ON APPEAL FROM KCCC 2260/2021)

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BETWEEN

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J U D G M E N T

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Appeal against the refusal of costs

1.This is an appeal against an order of refusal of costs following the application by the prosecution to withdraw Charge 1, a rape charge which was subsequently dismissed and following the acquittal of the appellant on a charge of indecent assault, Charge 2.

2.The appellant in this case was acquitted after trial of Charge 2, indecent assault by Deputy Magistrate Cindy Li at Kowloon City Magistracy.  The appellant’s application for costs for both the acquittal and the withdrawal and dismissal of Charge 1 was rejected.  The appellant now appeals against that decision.

The particulars of the charges

3.Charge 1 was rape, contrary to section 118 (1)  of the Crimes Ordinance, Cap 200.  The appellant was charged between the 21^st and 23^rd of June 2021 at Room C, Flat 16, 5^th Floor, Block B, Hung Yu Mansion, 155-169 Castle Peak Road, Cheung Sha Wan, Kowloon, in Hong Kong, he raped female X.  This charge was withdrawn by the prosecution and dismissed by the Court.

4.Charge 2 was indecent assault, contrary to section 122 (1)  of the same ordinance and the appellant was charged that on 26 April 2021, at the same address as Charge 1, Room C, Flat 16, 5^th Floor, Block B, Hung Yu Mansion, indecently assaulted another person, namely female Y.

Facts

5.Both X and Y were foreign domestic helpers that the appellant intended to employ; both had been offered jobs by him and were processing the necessary paperwork.  The offence location for both charges was not the intended contractual address of the upcoming employment for Y or X.  But the appellant had arranged for both women, one after the other, to live in those premises whilst their visa was processed.

6.It was arranged by the appellant for Y to live in the named offence location.  He told her that the premises belonged to his nephew but he gave her a key.  There appears no dispute that he arranged for her to live there before her visa and contract was processed.

7.The victim, Y, was interviewed by the appellant in his offices on 6 March 2021.  An employment contract dated 31 March 2021 was lodged with the Immigration Department on 13 April 2021 but was cancelled on 28 April 2021, two days after the offence date. The contract was between the victim and the appellant’s wife, not appellant.  The contractual address was in Fuk Wing Street, not the offence location.

8.On the offence date, 26 April 2021, the defendant and the victim went to the Immigration Department together.  Later they went to the defendant’s office to deal with the documents. The victim wanted to return back to the offence location where she was staying and the defendant told her that he would accompany her there to check that the premises were all right.  They arrived there at about 6 PM.

9.The victim alleged that the appellant inside the premises, took off his clothes and lay on a bed wearing his boxer shorts and a vest.  He pulled her on top of him and tried to kiss her lips and neck.  She struggled and told him to stop but he did not stop. The allegations of assault included him touching her breast underneath her bra and putting his hand on top of her private parts.  It was at this moment that he loosened his grip on her and she managed to get away.  She was very frightened.  He put his clothes back on and told her that she had to obey him if she did not want problems.  He left the premises.

10.She did call a friend and told her what happened.  This friend gave evidence of the recent complaint. This friend advised her to leave the premises in case the appellant returned.  She did pack up and leave that same evening and did not see him again.  However, there are many WhatsApp messages from the appellant after the indecent assault spanning several days until she blocked him.  She made a report to the police the following day.  Those WhatsApp messages were exhibited as P2.  The prosecution called the victim and her friend to give evidence of the recent complaint.

11.The defence case is that he did go to the Immigration Department with the victim on the material day and then returned to his office but he did not go with her to the offence location.  In fact, she went to the soon-to-be contractual address to see her work place and then was escorted back to the offence location by a female relative of the appellant to pack up her belongings and move to the contractual address.  The appellant himself went to the mosque to break the fast as it was Ramadan.  She had fabricated the allegations.

12.The defence called five witnesses including the appellant.  Two defence witnesses were the appellant’s current domestic helpers who claimed that the victim was in fact at the contractual workplace at the time of the alleged offence.  The defence called the same female relative who gave similar evidence to the appellant as to his whereabouts that day.  The last defence witness was a religious leader from the appellant’s mosque to say the appellant was at the mosque at around the time of the offence.

13.A month after the victim reported the appellant to the police, that same female relative issued small claims proceedings against the victim for allegedly not paying rent while she stayed at the offence location and stealing items from the offence location. The victim’s witness statement and supplementary statement were exhibited by the defence during the trial as Exhibit D8 and D9.  

14.It was also an admitted fact that the defendant was arrested for another charge on 5 August 2021 upon which he voluntarily handed over the keys to the offence location for both charges to the police.  I can see from the transcript and from the application for costs by Senior Counsel that that charge was Charge 1, the rape offence.  A sketch of the layout of those premises was produced by the police, Exhibit P1.

The magistrate’s findings of facts

15.The magistrate rejected the appellant’s evidence, refused to accept it and did not find him honest or credible.  She set out full reasons why in her reasons for verdict.

16.She did not believe either of the two defence witnesses, the appellant’s two current domestic helpers.  The magistrate found they had both exaggerated and did not find them honest, reasonable or credible.

17.The magistrate set out why she disbelieved the female relative of the appellant.  She found her evidence inconsistent and set out examples of inconsistency between her evidence and that of the appellant’s and the many WhatsApp messages between the appellant and the victim.  She rejected her evidence.

18.The magistrate considered the evidence of the religious leader and found his evidence vague and found he only assumed that the appellant was at the mosque at the relevant time.  The magistrate found this witness honest but unreliable.  She rejected the defence case in its entirety.

19.The magistrate found the evidence of PW2, when compared to the victim’s evidence had material discrepancies which meant she attached no weight to her evidence.  She found it did not serve to add anything to the victim’s credibility.

20.She then carefully evaluated the victims evidence carefully.  She found there to be discrepancies between the details of the indecent assault when she considered what the victim told the police when she reported the offence and what she recounted in a second statement to the police four months later.

21.The magistrate found discrepancies in four areas.  Whether the appellant had only tried to kiss her but failed or had managed to kiss her lips and neck.  Whether he was standing when he indecently assaulted her or whether he had lay on the bed and pulled her down.  Whether he had taken most of his clothes off or whether he had not undressed.  And lastly whether he only touched her upper body, breast and waist or whether he also touched her private parts.

22.Although the victim did address these discrepancies, the magistrate ultimately found unable to accept her evidence due to her failure to give a clear and consistent account of the indecent assault.

23.The magistrate nevertheless suspected that there was inappropriate sexual behaviour on the part of the appellant after taking into account the victims evidence and those many WhatsApp messages leading up to the offence date which she described as clearly out of line for an employer and employee scenario.

Reasons for refusing costs

24.The magistrate set out the governing legal principles in awarding costs in criminal cases in her statement of findings on costs.  She correctly considered the principle that a defendant who is found not guilty is entitled to costs incurred unless there is positive reason for depriving him.  She identified one such ground as being where a defendant has brought suspicion on to himself.  She quoted from the Court of Final Appeal authority Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 and the governing principles in awarding costs as laid down in the authority.

25.She considered it relevant in this case to consider the defendant’s conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him; the defendant may plainly have brought suspicion upon himself.  She said the court can take into account such conduct in the exercise of the court’s discretion on costs following an acquittal.  This is provided always that the discretion is not exercised so as to undermine the presumption of innocence as well as adopting a position at variance with the defendant acquittal by the court.  She referred herself to Ting James Henry v HKSAR (No. 2)  (2007) 10 HKCFAR 730.

26.She considered the principles which are applicable when considering whether to award costs in cases where charges are withdrawn and dismissed, she referred herself to HKSAR v Lam Chiu Fong & others (2009) 2 HKLRD 484.  The Court of Appeal held that where charges are withdrawn, the starting consideration to make an award of costs is the same as that established by authorities where there has been an acquittal.  There should be an award of costs in favour of the person charged unless there is positive reason for making a different order.

27.A consideration of costs will always be highly case sensitive as to the facts as well as the submissions heard.  A common sense approach must be adopted where charges are withdrawn.  Therefore, it is important for the court to know the reasons why the charge was withdrawn, what the proposed evidence was and the apparent strength of that evidence.  This will include whether there was evidence from an independent source to support the complaint.

28.The magistrate found that the appellant brought suspicion upon himself in both charges and refused his application for costs.  In relation to Charge 2, the magistrate found the defendant’s WhatsApp messages to the victim which formed part of the prosecution evidence and were known to the police during the course of their investigation were more than enough for the magistrate to conclude that the appellant had bought suspicion upon himself in relation to this charge.

29.Although it was common ground during the trial that there was no romantic relationship between the appellant and the victim and the defendant gave evidence that he had to actually spurn the victim’s advances whilst she tried to obtain a loan from him which was abhorrent to him as he was a married man and a Muslim observing Ramadan at the time, the many WhatsApp messages set out in exhibit P2 shows the defendant becoming very personal and intimate with the victim every day for 4 or 5 days prior to the offence date.  Nothing in the messages prior to the offence date showed that the victim encouraged him or responded to his suggestive messages with sexual undertones.

30.The tone of the appellant’s messages to the victim and the content changed the day following the alleged indecent assault where the victim pushed him away and did not respond to his sexual advances.  From the content of the messages, he is trying to show that there was a reciprocal romantic relationship.  He suggests that she had seduced him for his money.  The magistrate found the content contrived by the appellant.

31.The magistrate refused costs in relation to Charge 1 even though it had been withdrawn by the prosecution.  A reading of the transcript shows the magistrate had been told during the application for costs that the reasons the charge was withdrawn was because of a situation with the victim.

32.She took into account that during the investigation the defendant remained silent under caution and did nothing during the investigation stage to bring suspicion upon himself or to mislead the prosecution into thinking that the prosecution’s case was stronger than it actually was.  However, the magistrate found that there was independent evidence to support her finding that the appellant had brought suspicion upon himself in relation to the rape charge.

33.That independent evidence included CCTV evidence showing the appellant and that victim, X, were alone inside the offence location for about an hour on each evening of 21 and 23 June 2021.  CCTV footages showed the appellant in the premises from 22:17pm to 23:10pm on the first date and 20:38pm to 21:17pm on the second date.  Those were the times when the alleged charged acts of rape took place.  It was agreed by the defence that the CCTV footages showed the outside of that room or premises.  The magistrate having observed the appellant over the course of five days for the trial of Charge 2, was satisfied that the CCTV screen captured and identified the defendant entering and leaving the premises.

34.The magistrate took into account the fact that those premises were where the victim X was temporarily staying.  It was not the appellant’s home address.  Those premises were not to be the contractual address of the intended employment between the appellant and X.  The appellant was a married man and had no reason to be in those premises at that time of night with a potential domestic helper on two occasions.

35.The magistrate found that the appellant had brought suspicion on himself the both charges and found positive reason for depriving him of his costs.

Grounds of appeal

36.Mr William Allen, counsel for the appellant, put forward three grounds of appeal relating to Charge 1 and 2 grounds of appeal for Charge 2.

Charge 1

37.Ground 1 complains that the magistrate erred in law in not awarding the appellant’s costs in respect of Charge 1 which was dismissed on the prosecution’s own application to withdraw it.  The magistrate should have followed the normal rule; costs should have followed the event.

38.Ground 2 complains that the magistrate wrongly and unfairly accepted the evidence and submissions from the prosecution; relying on those submissions to find the appellant had brought suspicion upon himself.

39.Ground 3 complains that the magistrate unfairly and erroneously placed weight on that untested evidence and treated the evidence as proved without reminding herself that there is a presumption of innocence.

Charge 2

40.Ground 4 complains that the magistrate erred in refusing the application for costs in respect of Charge 2 despite acquitting the appellant when she did not accept the victim’s evidence.  Since there was a finding of material discrepancies, doubts in the consistency of the victim’s evidence and a failure on her part to give a clear and consistent account, costs should have followed the event.

41.Ground 5 complains that the magistrate placed too much weight on the WhatsApp messages between the appellant and Y.  The magistrate was wrong to find the messages one-sided and failed to consider they suggested a two-way mutual romantic relationship and the victim, Y ended it.

42.There are written submissions to support the grounds.  Mr Allen suggests that the rape charge was withdrawn because the prosecution had doubts about the reliability, credibility and truthfulness of the alleged victim’s allegations.  This is an unsubstantiated suggestion.  He makes an assertion that his instructing solicitors were told the victim may be an unreliable witness plus the Department of Justice took into account the allegation of appellant’s wife that X had stolen from them.  Just like they had alleged Y had stolen from them.  Both accusations came after the appellant was reported to the police by X and Y separately.

43.Mr Allen accepts that an acquitted defendant should be granted his costs unless there are positive reasons for not doing so. He only concentrates on the appellant’s conduct after his arrest and whilst he was being investigated to support his grounds.

44.Mr Allen suggests that the magistrate relied on untested prosecution evidence as if it had been tested and proved against the appellant.  He suggests her dim view or opinion of the appellant should a biased showed a bias towards him.  She suggests that he is silence and failure to reveal a defence was a factor she considered relevant.

45.It was suggested that the WhatsApp messages to the victim of Charge 2 may have been inappropriate but did not prove guilt.  He says those messages supported the defence case that it was the victim Y who was leading the appellant on and not the other way around.

The respondent’s reply

46.The respondent represented by Ms JoJo Lam supported the magistrate’s decisions, findings and reasoning behind the findings.  She reiterated in the appeal hearing that the reason of Charge 1 was withdrawn was not because the victim X was unreliable.  The reason was that evidence was insufficient.  There is a difference.

47.In answer to all three grounds relating to Charge 1, the respondent points out that the magistrate did not undermine the presumption of innocence nor did the magistrate find the defendant from untested evidence guilty of the offence.  She was well aware that the appellant did nothing during the investigation stage to bring suspicion upon himself or mislead the prosecution.  Nevertheless, the magistrate was within her rights to consider the appellant’s conduct prior to the investigation and trial stages.

48.Her reference to the undisputed CCTV evidence and the other factors surrounding the defendant’s presence at that location on two separate evenings when there was no reason for his presence was reasonable and showed analysis.  The magistrate did not mechanically award costs just because the charge was withdrawn but considered all circumstances to find positive reasons to deprive the appellant of his costs.

49.As far as the 2^nd charge is concerned, the respondent relies on the magistrate’s reasons for acquitting the appellant and giving him the benefit of the doubt was not because she did not believe Y.  The magistrate found that there were discrepancies between two versions of the assault which affected the consistency of the victim’s evidence.  Since the magistrate could not be sure as to what had actually transpired between the victim and the appellant, she gave the benefit of the doubt this raised to the appellant.  She did not mean she did not believe something untoward and indecent had not occurred.

50.The magistrate’s finding that there were positive reasons for depriving the appellant of his costs was not unreasonable nor wholly wrong.  She considered his conduct through the WhatsApp messages that were not disputed brought suspicion upon himself; the respondent again finds her reasoning without fault.

Discussion

51.A magistracy appeal is conducted by way of a “rehearing” on the evidence before the magistrate and this would include findings on costs awards.  I can reconsider whether the appellant should be deprived of costs.  I don’t propose to repeat the legal principles on costs which are abundantly clear and have been covered by both counsel in their submissions for the appeal.  They are certainly covered in detail by the magistrate.

52.If a magistrate acquits a defendant after dealing with any offence, he may order that costs be awarded to the defendant.  The law confers on the magistrate a discretion by providing that the magistrate may make an order that costs be awarded.

53.It is a legal principle that an acquitted defendant should be awarded costs, unless there are positive reasons to deprive him of such costs.  Those positive reasons include, for example, whether the defendant has brought suspicion upon himself, whether his conduct has misled the prosecution into thinking that the case against him is stronger than it is and whether there is ample evidence to support a conviction but it is quashed on a technicality.

54.Unless the magistrate has considered matters that should not have been considered, I should be slow in interfering with her exercise of her discretion.  I find nothing that indicates the magistrate has taken account of matters erroneously or contrary to the presumption of innocence.

55.I have considered the facts of this case and the exhibits.  I find on a reading of the WhatsApp messages from the appellant to the victim of Charge 2, Y, I agree that the content at the material time did bring suspicion upon the appellant.  His conduct relating to the offence although outside of the investigation period is relevant and can be considered for the purposes of a costs application.

56.From a reading of the messages just before the date of offence the magistrate found, and I agree with that finding, the appellant was contemplating inappropriate behaviour and tried to portray a mutual sexual relationship but a reading of it clearly showed a one-sided bombardment of immature, unseemly and improper drivel from the appellant.  I agree with the magistrate when she described the messages from the appellant as a blatant yet clumsy effort to coordinate a back story in order to exploit the victim which was distasteful and must have troubled, if not, traumatised the victim.

57.The magistrate was entitled to consider relevant the contents of those messages in conjunction with who the appellant was to the victim.  I agree there were positive reasons to deprive him of his costs.  I find there to be no merit in any grounds of the appeal relating to the refusal to grant costs following the appellant’s acquittal of Charge 2 after trial.

58.Although the charge of rape, Charge 1 was dismissed against the appellant upon the application of the prosecution, again, a costs award is at the discretion of the Court.  Positive reasons to deprive the appellant can include a consideration of his conduct prior to the investigation stage.

59.The magistrate was entitled to take into account his presence a married man, at the location where the victim was living pending employment arranged by the appellant.  She was entitled to take into account his undisputed presence at this location where he had allowed her to live pending her employment with him and the undisputed late hour of the night on two separate dates which were the same dates the victim had accused him of rape.  Those were all relevant factors.

60.The magistrate found positive reason in the appellant’s conduct to find he had brought suspicion upon himself and deprive him of his costs.  There are no merits in the grounds relating to the refusal to award costs following the dismissal of Charge 1.

61.Under such circumstances and considering the same conduct, I would in exercising my discretion adopt the same approach as the magistrate by not awarding the d8efendant any costs incurred for either Charge 1 or Charge 2.

62.For the reasons given above, I would dismiss this appeal against the costs orders.

Ms Lam Cho Yi, JoJo, Public Prosecutor, of Department of Justice, for the Respondent

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