HKSAR v. Lcmb

HCCC 8/2022

[2023] HKCFI 692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 8 OF 2022

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DECISION ON APPLICATION FOR COSTS

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1.The Defendant was charged with two counts of Rape and one count of Indecent Assault.  The complainant is his daughter.  The Defendant was committed for trial with a ruling of the Magistrate at a Preliminary Inquiry.  After trial, the Defendant pleaded not guilty to all counts and was found not guilty of all the counts by the jury.  He applied for costs starting from the proceedings at the Kwun Tong Magistracy.

2.Parties agree that this matter can be dealt with by way of paper disposal.  In addition, for convenience, there is no objection that the decision on this matter be prepared in English despite the trial was conducted in Chinese.

STAND OF THE PROSECUTION

3.Counsel representing the prosecution, Mr Steven Kwan, accepted that as the Defendant has been acquitted, he is in principle entitled to costs.  He, however, submitted that in the circumstances of the present case, costs should not be granted to him at all and in any case not in relation to the following matters:

(1)  Costs relating to the Preliminary Inquiry;

(2)  Costs relating to the unsuccessful application for stay of proceedings and quashing of the indictment; and

(3)  Costs relating to the alibi witnesses in relation to whom the Defence had filed notice pursuant to the statutory requirement.

THE PRINCIPLE

4.It is trite law that order of costs is discretionary.[1] Sections 15(a) and (c) of the Costs in Criminal Cases Ordinance[2] further provides:

“In any criminal proceedings –

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;

...

(c)  an order as to costs shall be such as a court or a judge considers just and reasonable;”

5.The Court of Final Appeal has in various decisions set out the principle governing granting of costs.  I just need to quote the following passage in Tong Cun Lin v HKSAR[3] where Litton PJ observed:

“The legislature in empowering the court to award costs has not laid down the conditions under which the broad discretion under s.73A(1) should be exercised. The court must therefore by construction fill the gap. What then are the governing principles? When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal - the averments constituting the charges having been found by the jury as not amounting to the crimes alleged - it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

6.In Lai Kwok Fai v HKSAR (No 2 )[4], Ma CJ said:

“In exercising a discretion as to costs following an acquittal, the Court’s focus, if it is suggested that a defendant should be deprived of the usual order following an acquittal (that is, that the defendant should have his costs of defending the charge), is primarily on the defendant’s conduct seen against the relevant circumstances, including the evidence against him.”

RELEVANT CIRCUMSTANCES

7.The only evidence against the Defendant came from the complainant.  There was no other evidence which was capable of implicating the Defendant.

8.As said, the Defendant elected to have a Preliminary Inquiry.  At the Preliminary Inquiry, the prosecution called five witnesses: the complainant, her mother, the Pathologist who examined the complainant, a social worker who had provided service to the complainant and a woman police constable who had interviewed the complainant.  The Defendant did not testify.  The Preliminary Inquiry lasted for seven days.  The complainant was subject to lengthy cross examination.

9.The magistrate was satisfied that the criteria for committal as provided in section 85(2) of the Magistrates Ordinance were fulfilled and ordered that the Defendant stand committed for trial in the Court of First Instance.

10.After committal, at the Case Management Hearing, Counsel for the Defence, Mr Alan Hoo, SC, together with Mr Edward KH Ng, raised that there would be an application for stay of proceedings.  Date was set down for hearing of the application and eventually there were hearings on 28 October and 24 November 2022.  In the course of the hearing, Mr Hoo also applied for quashing of the indictment on the ground that the committal proceeding is fundamentally defective.

11.The application for stay and the application for quashing the indictment were both not successful.

12.Prior to the commencement of the trial, the defence filed alibi notice stating that there might be four witnesses for this purpose and indicating a total of 66 periods of time during which the Defendant claimed he was at places other than his home, where the alleged incidents were said to take place.

13.The case then proceeded to trial.  The complainant was the main witness for the prosecution.

14.After the close of prosecution case, there was an unsuccessful submission of no case to answer.  Following that, the Defendant elected not to testify and did not call any witness.

15.As mentioned above, the jury found the Defendant not guilty of all the counts laid against him.

DISCUSSION AND CONSIDERATION

16.In consideration, firstly I bear firmly in mind that the evidence against the Defendant came solely from the complainant and at the end he was found not guilty of all counts by the jury.

17.Secondly, I do not think in this case the Defendant can fairly be said to have brought suspicion upon himself.

18.In all the circumstances, I reject the submission of Mr Kwan that costs should not be granted to the Defendant at all.  My consideration and decision in relation to the three matters stated in paragraph 3 above are as follows.

19.As regards the Defendant’s election to have a Preliminary Inquiry, Mr Kwan, in reliance of the Privy Council decision in Cheung Ying-lun v Government of Australia[5], stressed that the threshold for committal after preliminary inquiry is relatively low.  It is his submission that the preliminary inquiry was unnecessary and it unreasonably prolonged the criminal proceedings, and therefore costs were unnecessary or improperly incurred.

20.The Magistrate was satisfied on the evidence that the case should be committed for trial.  Whilst this finding has to be taken into account, on the other hand the right for an accused to elect for a preliminary inquiry should be given due respect.  Evidence against the Defendant came solely from the complainant and he was entitled to test her evidence, in particular as the medical evidence did not support her allegation of a total of four rapes, there were apparent inconsistencies in her witness statements and her delay in making a complaint was quite remarkable.

21.In the circumstances, I will exercise my discretion in favour of the Defendant as regards the costs incurred for the preliminary inquiry.

22.As far as the application for stay, Mr Hoo alleged that there had been multiple abuse of process by the Prosecution and the investigation authority, and as a result a fair trial for the Defendant would have been impossible; and in any case, the Prosecution’s conduct amounted to an affront to the conscience of the Court.  The application for quashing of the indictment was based on an alleged non-compliance of certain statutory requirements as provided in the Magistrates Ordinance[6].

23.Seven grounds were put forward in support of the application for stay:

(1)  Suppression of the evidence of the Police pathologist who examined the complainant;

(2)  Suppression of the evidence of the social worker to whom the complainant made the first complaint against the Defendant;

(3)  Suppression of the evidence of the police officer(s) to whom the complainant had made statements;

(4)  Possible misuse of the evidence of the mother of the complainant;

(5)  Abuse of process by the complainant, which may amount to contempt of court;

(6)  Refusal of the prosecution to furnish further material particulars of offence; and

(7)  Failure / Refusal to investigate the case of the Defendant.

24.In his written submission, Mr Hoo had at one stage indicated the stand that, despite the situation is not sufficient to quash the indictment, permanent stay of the proceedings is the only appropriate course to take in the light of the defect as it amounts to a blatant abuse of process which undermines the administration and course of justice[7].  At the hearing, he revived the submission that the indictment should be quashed.

25.For the reasons set out in the Decision dated 1 December 2022:

(1)  I held that the committal was not defective nor a nullity, and quashing of the indictment was not justified; and

(2)  I did not find:

(a)  any of the grounds raised by the Defendant on its own justify staying of the proceedings;

(b)  the Defendant had satisfied me on balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held;

(c)  continuation of the prosecution amounted to a misuse of the process of the court; and

(d)  the circumstances involved or would involve an abuse of power which so offend the court’s sense of justice and propriety that the prosecution was tainted as an abuse of process.

26.I concluded that it did not serve the public interest to stay the proceeding, and refused the application to stay the proceedings.

27.The submission of Mr Kwan is that the applications were unmeritorious and should not have been made and as a result costs were unnecessarily or improperly incurred for the applications.

28.I understand that at that stage there was apparent disagreement as to whether witnesses such as the pathologist should be called by the prosecution. However, that by itself did not justify making an application for stay of proceedings.  The matter could be dealt with swiftly in hearings such as a case management hearing.

29.Having said that, in the written submission filed for the application for stay, the prosecution adopted a stand which did not alleviate the need for a hearing and it appeared that a court ruling would be required for all the issues raised including that of calling of witnesses.  It was only at the application hearing and after some exchange with the court that the prosecution confirmed that the witnesses in question would be called by the prosecution.

30.One of the grounds relied upon by the defence in the application for stay was undue publicity against the defendant.  Effective means to alleviate the potential prejudice against the defendant were available.  In fact, such measures were put in practice and the result of the case indicated that no real prejudice had been caused to the defendant.  More importantly, the matter should have been dealt with by way other than an application for stay.

31.The reasons for my refusing of the applications as set out in paragraphs 25 ‑ 26 above are detailed in the Decision dated 1 December 2022.  Bearing in mind all relevant consideration factors, in my judgment it is a situation where I should exercise discretion only to order the Defendant to have 20% of the costs relating to these applications.

32.As regards the costs arose from the alibi related matters, Mr Kwan stressed the following matters:

(1)  the notice failed to specify which witness would testify as to which of the 66 periods of time when the Defendant claimed to be absent from home;

(2)  in the circumstances the prosecution was entitled, and under a duty, to investigate the veracity of the alibi by interviewing the alibi witnesses;

(3)  two of them refused to give a witness statement to the police; and

(4)  each the other two provided unsatisfactory account.

33.I agree that a main purpose of the statutory requirement of alibi notice is to let the prosecution have the opportunity to verify the veracity of the alibi evidence.  What Mr Kwan informed the court about the inquiry are matters the court is entitled to take into account. The quality of the alibi evidence can be a factor to be taken into account and there may be circumstances where giving of the notice gives rise to situation where costs are unnecessarily or improperly incurred.  However, in the context of the present case, I have to bear in mind that the complainant was not able to tell the exact date of any of the alleged incidents, let alone the time the alleged incident took place.  When she testified, she was not able to tell even it was close to the beginning or the end of the month, or close to a particular significant date.  Whilst it may be said that this is not uncommon in this nature of case, the difficulty posed on the defence cannot be unduly overlooked.  Having considered the whole of the relevant circumstances, I do not consider it appropriate to exercise my discretion to deprive the Defendant of cost incurred on this matter.

CONCLUSION

34.I therefore make an order that the prosecution is to bear the costs of the Defendant, from the proceedings at the Magistracy till the end of the trial, save that he is only entitled to 20% of the costs incurred for the purpose of the application for stay and application to quash the indictment. If parties cannot agree on the amount of costs, it be taxed by a master.

Mr Hoo, Alan, SC, together with Edward KH Ng, instructed by Messrs Tung, Ng, Tse & Lam, for the Defendant

Mr Kwan, Steven MW, counsel on-fiat, for HKSAR