HKSAR v. Ali Moiz and Another
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DCCC 659/2025 [2026] HKDC 1779 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 659 OF 2025 ---------------------
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------------------------------------- RULING ON COSTS -------------------------------------- 1.The 1st Defendant (“D1”) and 2nd Defendant (“D2”) were jointly charged for Wounding with intent. Both Defendants have indicated pleas of not guilty and a 4-day trial was fixed for 12 to 15 October 2026. 2.On 20 August 2026, the Prosecution applied to offer no evidence for the charge after the victim had indicated his refusal to testify in court. The charge was dismissed accordingly. 3.Pursuant to section 4 of the Costs in Criminal Cases Ordinance, Cap. 492, the Defendants apply for an order that the prosecution to bear their costs. 4.The prosecution objects the Defendants’ application and submits that there is a positive reason not to award costs as both Defendants have by their own conduct brought suspicion upon themselves. The Law 5.Section 4 of the Costs in Criminal Cases Ordinance, Cap. 492 provides that:
6.Parties agree that the general rule is to award costs to the Defendants unless there are positive reasons to deprive them of such costs. Prosecution’s Submission 7.The Prosecution submits that the victim’s complaint was supported by independent evidence: medical records, the knife sheath found at the scene, the CCTV footage and the Defendants’ undisputed admissions all corroborated the victim’s account. The strength of the proposed evidence against the Defendants, as set out in the Summary of Facts, was overwhelming. 8.The Prosecution considers that it is clear from the Defendants’ own admissions that they were not mere innocent bystanders. D1 admitted attending the location in response to a request, while D2 admitted being there specifically to await D1’s arrival. And both admitted to witnessing the outbreak of the violence. The Prosecution considers by their continued presence and detailed observation at the scene, their conduct squarely brought suspicion upon themselves. 9.The Prosecution submits that the suspicion is further compounded by the undisputed fact that both Defendants and PW1 were not strangers. In particular, D1 admitted that the attack was related to the previous day’s quarrel but he did not take any steps to immediately distance himself when the armed affray broke out. Position of D2 10.It is D2’s position that the Prosecution’s allegation that the Defendants brought suspicion upon themselves fails for the following reasons:
11.D2 submits that to satisfy the legal test for “positive reasons”, the relevant suspicion must be directly attributable to D2’s own conduct. D2 has made no admission of physical violence, there is no independent evidence linking D2 to the alleged wounding. D2 should not be deprived of his costs, as he has done nothing to invite or justify a finding of suspicion. Position of D1 12.D1 adopts and supports D2’s submissions for costs. 13.It is D1’s position that D1 has not brought suspicion on himself. D1 should not be deprived of his legal costs. Argument Analysis 14.It is not disputed that the victim was involved in an affray, and sustained injuries during an assault and the Defendants were present at the scene. Both of the Defendants take no issue on the victim’s medical records, the knife sheath found, the CCTV footage and their respective admission. However, the Defendants denied participation in the assault, thus identification is in issue. 15.The admission of a defendant is only evidence against himself and not evidence against his co-defendant. According to the Summary of Facts, it was D2 who confronted the victim on the night of 18 December, there is no indication that D1 engaged in any argument with the victim. D1 only admitted he received a group message to go to the scene and noticed D2 was also there. Though D1 also attributed the fight to a quarrel the victim had with others on 18 December, he made no admission of participation or prior knowledge of the assault. 16.D2 identified himself in the CCTV footage and admitted he went to the location together with his friends awaiting D1’s arrival. He admitted he witnessed a fight and he had seen the victim before. Likewise, D2 made no admission of participation or prior knowledge of the assault. 17.Without the evidence of the victim, there is no evidence links up the Defendants to the assault. The Defendants did not deny their presence nor their prior encounter with the victim, and participated in their respective video recorded interviews and identification parades. I am of the view that the circumstances raising suspicion, if any, were not enough to justify in exercising my discretion against the Defendants on costs. Conclusion 18.I agree there is no positive reason to deprive the Defendants’ costs in this case and the general rule applies. The Prosecution to pay the 1st and 2nd Defendants’ costs of the whole proceedings, to be taxed if not agreed.
Ms Karen Li, Acting Senior Public Prosecutor, for HKSAR Mr William Allan, instructed by Mohnani & Associates, for the 1st defendant Ms Natalie Lam, instructed by Mohnani & Associates, for the 2nd defendant |
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