HKSAR v. Gurung Ashis and Another

DCCC 269/2020

[2023] HKDC 1710

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 269 OF 2020

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DECISION ON COSTS

Both defendants were jointly charged with an offence of "Robbery" (Charge 1) and an offence of "Attempted robbery" (Charge 2). They pleaded not guilty to both charges.

2.There is no dispute that the 2 local Chinese victims in this case were robbed by 3 to 4 masked males with dark complexion.  Both victims were unable to see the face of any robber.  The only person who claimed to have seen the faces of the robbers was SO1[1] (PW3).  He said in his evidence that he had seen the robbers' faces prior to the robbery when they had not yet put on their masks.  SO1 witnessed the robbery and relayed the descriptions of the culprits to his colleagues standing by in the vicinity through radio.  Based on the information they heard, AO1 (PW5) and AO2[2] (PW4), who did not witness the robbery, arrested D1 and D2 respectively shortly after the robbery at different locations near the crime scene.   In short, the successful prosecution of D1 and D2 hinges upon the identification evidence coming from PW3.

3.Defence counsel Mr. Allan challenged the admissibility of 2 identification parades held on 27 June 2019[3] in which PW3 identified D1 and D2 as two of the robbers.  The first one involved D1; whereas the second one, D2.  Parties agreed to deal with this special issue by way of alternative procedure.

4.Written grounds of objection respectively dated 3 October 2023 and 18 November 2022 were submitted by Ms. Bina Sujanani (D1's former counsel) and Mr. William Allan.  Ms. Sujanani was discharged by D1 on Day 3 of this trial (5 October 2023) when she was in the middle of her cross-examination of PW3.  Mr. Allan formally took over D1's case on Day 5 (10 October 2023).  He ended up representing both D1 and D2.

5.The trial of this case was originally fixed for 8 days from 3 to 12 October 2023.  Due to the unforeseeable circumstances described above, the trial had to go part-heard with 5 days reserved.  It resumed on 20 November 2023 and finished on 24 November 2023.

6.The evidence for the special issue ended in the morning on 24 November 2023.  Counsel for both sides then made submissions on the special issue.  I gave my ruling after lunch on the same day.  I was not satisfied beyond reasonable doubt that the 2 identification parades held on 27 June 2019 involving D1 and D2 were fairly conducted.  Therefore, I ruled that Exhibits PP30 and PP35 as well as their related documents were inadmissible.  On 5 December 2023, I handed down the reasons for my ruling[4].

7.Right after I gave my ruling on the special issue on 24 November 2023, Mr. Au Yeung for the prosecution conceded that there was no case to answer for D1 and D2 on the general issue.  I dismissed both charges accordingly.  Mr. Allan immediately applied for costs on behalf of D1 and D2. Mr. Au Yeung objected on the basis that both defendants have brought suspicion upon themselves.  Having considered their oral submissions, I now give my decision.

8.As I have indicated earlier, the successful prosecution of D1 and D2 hinges upon the identification evidence coming from PW3.  Without the evidence of the 2 identification parades held on 27 June 2019, there is no evidence to prove that D1 and D2 were 2 of the robbers observed by PW3.  At most the prosecution could prove is that they were present in the vicinity of the crime scene shortly after the robbery, which is hardly evidence of bringing suspicion upon themselves.

9.I have considered the contents of the respective video recorded interviews ("VRIs") of D1 and D2 (Exhibits P23B and P24B).  At most they have admitted that they saw a robbery[5].  They both denied that they had anything to do with the robbery[6]. They have explained why they were present at the respective locations of their arrest.  Mr. Au Yeung submitted that both defendants have admitted in their VRIs that they had run before they were arrested.  Mr. Allan submitted that running away upon seeing a robbery is normal.  I do not consider that in the present case, mere admission of having run prior to being arrested amounts to evidence of bringing suspicion upon oneself which can justifiably deny an application for costs.

10.Based on the reasons stated above, I grant the defence application for costs.  D1 is entitled to his costs of this trial starting from Day 5 (10 October 2023); amount to be taxed, if not agreed.  D2 is entitled to his costs of this trial; amount to be taxed, if not agreed.