HKSAR v. Mohammad, Nawaz

HCMA 355/2025

[2026] HKCFI 5659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 355 OF 2025

(ON APPEAL FROM STCC 749/2025)

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BETWEEN

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J U D G M E N T

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1.The appellant was acquitted after trial of one count of possession of a dangerous drug[1]. The defence applied for costs and was refused by the magistrate.

2.The appellant now appeals against the magistrate’s refusal to award costs.

Prosecution case

3.At trial, the prosecution initially intended to rely on the evidence of PW1, the arresting officer of the appellant, and PW2, the officer who subsequently made a record of interview with the appellant with reference to the record in PW1’s notebook (“Record of Interview”).  Following the magistrate’s expression of concern that the Record of Interview was made 12 days after arrest, the prosecution elected not to adduce the Record of Interview in evidence and not to rely on the testimony of PW2.  In the end, the prosecution only relied on the evidence of PW1.

4.According to the evidence of PW1, he saw the appellant sitting in the driver’s seat of a private car and found him suspicious.  He searched the appellant and found a packet containing a pellet of herbal cannabis from his trouser pocket.  Subsequently, the appellant admitted under caution at the scene that he possessed cannabis buds in his right trouser pocket and had bought them from a male for $100 for self-consumption (“Verbal Admissions”).  PW1 recorded the Verbal Admissions in his notebook in traditional Chinese and did not ask the appellant to sign his notebook as he knew the appellant could only understand Chinese to a limited extent.  Given the admissibility of the Verbal Admissions was in issue, alternative procedure was adopted.

Defence case

5.For the special issue, the defence challenged the fairness and reliability of the Verbal Admissions.  The magistrate ruled no case to answer on the special issue.

6.The magistrate ruled a case to answer on the general issue.  The appellant elected not to give evidence and not to call any defence witness. 

7.For the general issue, the defence challenged that the drug was not found on the appellant and that PW1 was lying.

Magistrate’s findings

8.On the special issue, the magistrate’s oral ruling differed from his written reasons.  In his oral ruling, he held that there was no case to answer as there was no signature confirming what the appellant had allegedly said under caution[2].  In his written reasons, however, the magistrate referred to the Record of Interview, notwithstanding that it had neither been adduced nor relied upon by the prosecution.  He noted that PW1’s notebook entries were made in traditional Chinese, that the appellant had not signed the notebook, and that PW2 had made the Record of Interview 12 days after arrest by referring to PW1’s notebook.  He found that, even taking the evidence of PW1 and PW2 at its highest, admitting the Record of Interview would be so unfair to the appellant that he had to exercise his residual discretion to exclude it.  He therefore ruled no case to answer on the special issue[3].

9.On the general issue, the magistrate found PW1 not an honest and reliable witness.  In particular, his evidence contained inconsistencies concerning the efforts he made to ascertain the language with which the appellant was most comfortable.  The magistrate was not satisfied that the prosecution had proved all elements of the offence beyond reasonable doubt.  He therefore acquitted the appellant[4].

10.On the costs application by the defence, the magistrate noted that the issue was whether the appellant had brought suspicion upon himself or misled the prosecution into thinking that the case against him was stronger than it actually was.  He considered that, even though the handling of the Record of Interview left much to be desired, the fact that the appellant had signed on the Record of Interview was one of the matters that he could consider on the question of costs.  He found that by signing the Record of Interview, the appellant had undoubtedly brought suspicion upon himself and/or misled the prosecution into thinking that the case against him was stronger than it was.  For those reasons, he exercised his discretion and refused to award costs to the appellant[5].

Grounds of appeal

11.The appellant’s grounds of appeal are:

(1) the magistrate erred in fact in asserting that the appellant had signed on the notebook of PW2 when there was no evidence as to the contents of that notebook;

(2) the magistrate erred in fact and law in finding that the appellant had signed on the alleged verbal admission contained in the notebook of PW1 and confirmed the contents;

(3) the magistrate erred in fact and law by placing any reliance upon the appellant’s act of signing the Record of Interview when considering costs; and

(4) the magistrate erred in law in relying upon the excluded statement in PW1’s notebook and/or PW2’s Record of Interview, having ruled that the lawfulness of its genesis was in doubt and its content unreliable.

Consideration

12.The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that the magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.

13.Parties agreed on the principles on awarding costs upon acquittal as set out in the respondent’s submissions.  In general, costs are normally awarded to an acquitted defendant unless there are positive reasons for refusal, including where the defendant has brought suspicion upon himself or misled the prosecution into thinking that the case against him was stronger than it was[6].  In considering costs, the trial judge will look to the conduct of the defendant during the investigation and at the trial, including how he first responded to the investigators, the answers he gave when confronted with the accusations, the strength of the case against the defendant and the circumstances under which he came to be acquitted, etc[7]. 

14.Although four grounds of appeal have been advanced, the appellant’s essential contention is that the magistrate wrongly relied upon the Record of Interview and treated the appellant’s act of signing it as conduct justifying the refusal of costs, notwithstanding that the Record of Interview had neither been adduced nor relied upon in proving guilt, and that the appellant had no opportunity at trial to challenge its admissibility.

15.In HKSAR v Wong Pak Nin [2000] 1 HKLRD 74, it was held that in deciding a costs application, although a statement had been ruled inadmissible, “the evidence relating to its provenance or contents may reveal that the accused brought suspicion upon himself.  A magistrate, in certain circumstances, must be able to examine a confession statement from one view for the purposes of determining admissibility, but from a different standpoint for the purposes of deciding an application for costs[8]”. In Li Lai Yu Jane v HKSAR HCAL 40/2003, it was held that it was permissible, in some circumstances, for the trial magistrate or judge to have regard to the answers given in a cautioned statement, despite that the statement is ruled to be inadmissible.  This applies to cautioned statement “that is excluded on procedural or technical grounds or grounds that do not call into doubt the genesis and reliability of the contents in the statement[9]”.

16.In the present case, the Record of Interview was not excluded by any ruling of the court. Rather, following concern raised by the magistrate during the early stage of PW2’s evidence, the prosecution elected neither to adduce the document nor to rely further upon PW2’s testimony[10].

17.The respondent submitted that, in the absence of any finding that the Record of Interview, or the appellant’s signature thereon, had been obtained involuntarily, the magistrate was entitled to take the document into account when determining the costs application.

18.I am unable to accept that submission.  Whilst the authorities recognise that, in certain circumstances, material ruled inadmissible may nevertheless be considered on the question of costs, the present case is materially different.  The Record of Interview was prepared by PW2, who was not the arresting officer, some 12 days after the arrest and by reference to PW1’s notebook.  It purported to record the appellant’s alleged admissions, the admissibility of which was itself a live issue at trial.

19.Had the Record of Interview been adduced, its admissibility would likely have been challenged.  However, because the prosecution elected not to rely upon the document and did not pursue PW2’s evidence further, the defence was deprived of any opportunity to test the circumstances in which it was prepared and signed.  It therefore remains unclear whether the document would have been admitted and, if so, what weight could properly have been attached to it.

20.In those circumstances, I do not consider this to be a case falling within the exceptional category identified in the authorities.  The magistrate ought not to have had regard to the Record of Interview, or the appellant’s signature thereon, when determining the costs application.  To do so was to place weight upon material that had not been admitted in evidence and had not been subjected to scrutiny at trial.

21.The prosecution opposed costs solely on the basis that the appellant had signed the Record of Interview.  For the reasons given above, the magistrate ought not to have had regard to that document.  Absent the alleged admissions, and given the magistrate’s rejection of PW1 as an honest and reliable witness, there was no basis for concluding that the appellant had brought suspicion upon himself.  The refusal of costs was therefore erroneous.

22.On rehearing, I find there is no evidence to show the appellant has brought suspicion upon himself and he should be entitled to costs.  The appellant’s appeal against refusal of costs is allowed.

Miss Lo Wing Shan, Stella, SPP, of Department of Justice, for the respondent

Mr Marwah, Azan Aziz and Miss Tang, Clare Yee Yan, instructed by Mohnani & Associates, for the appellant