HKSAR v. Wong Shing Chung

HCMA000681A/2003

HCMA 681/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 681 OF 2003

(ON APPEAL FROM KCCC 4169/2003)

____________

____________

Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 5 February 2004

Date of Ruling: 5 February 2004

__________

R U L I N G

__________

1.The applicant in this case has applied for costs both for the appeal and for the trial, having successfully appealed against his conviction.

2.The governing principle as has been stated in Hong Chun Lin v HKSAR (1999 2 HICCFAR 5-31) is that an acquitted defendant should normally be compensated out of public funds for the costs incurred in defending the charges. In considering this whether he should be deprived of all or part of his costs the judge must look at his conduct generally so long as such conduct was relevant to the charges faced.

3.Their Lordships in fact, Litton PJ, had at page 5-35 of the report set out very clearly what the governing principle is, and it says this:

"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 his 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 a not-guilty verdict."

4.So basically, what I have to decide is the defendant's conduct after trial. There was good evidence from the prosecution witness. The cautioned interview, as the learned magistrate, found at that time, he felt that it corroborated PW1's evidence and, certainly, as the learned magistrate had pointed out, there were certain matters that were not disclosed which would have affected the investigation.

5.So the strength of the case against the applicant was strong and there was evidence upon which he could be suitably and reasonably convicted if not for the learned magistrate's over-reliance on the fact of his non-answers or non-provision of answers to the or insufficient provision of the answers to the ICAC.

6.And so on that governing principle, I do not consider that the applicant is entitled to his costs for the trial. As for this appeal, certainly the ground is a stronger one for costs and I find therefore that the applicant is entitled to his costs on the appeal but not for trial.

7.Costs will be taxed if not agreed.

Representation:

Mr Jonathan Man, SGC, for the Director of Public Prosecutions, for the Respondent

Mr Ian Hastings Polson, instructed by Messrs Jal N Karbhari & Co., for the Appellant