HKSAR v. Ong Chun Ying

HCMA000283/2003

HCMA283/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.283 OF 2003

(ON APPEAL FROM KCCC 15889 OF 2002)

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Coram: Deputy High Court Judge Day in Court

Date of Hearing: 2 May 2003

Date of Judgment: 2 May 2003

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J U D G M E N T

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1.The appellant in this case faced a single charge of theft of $3,000. He denied the allegation and the charge was dismissed. He then applied to have his costs paid by the prosecution and the magistrate declined to make such an order. It is against this decision that the appellant now appeals.

2.The original theft allegation arose out of the proposed sale of the appellant's car to a Mr Chan. Mr Chan paid a deposit of $3,000 but when the sale did not proceed that deposit was not returned. The prosecution alleged that the appellant had stolen the deposit. The appellant's case was that he and Mr Chan had agreed that if the sale did not proceed by a certain deadline, the appellant was entitled to forfeit the deposit.

3.As the magistrate made clear in court and repeated in his reasons for the ruling he gave on the costs application the charge was dismissed because although he found the prosecution witnesses to be more persuasive than the appellant and his witness, he was unable to conclude that a theft had been proved beyond a reasonable doubt.

4.The power for magistrate to order costs is contained in the Costs in Criminal Cases Ordinance, Cap. 492 and plainly is a discretionary power falling to be considered in a light of the circumstances of each particular case. The Ordinance itself does not suggest the circumstances in which a court might exercise its power but it is a discretion which has often been considered by the courts. The normal practice is that an order should be made for the payment of costs out of the public revenue unless there are positive reasons for making a different order. Positive reasons might be where the defendant's own conduct has brought suspicion upon himself and he misled the prosecution into thinking perhaps that the case against him is stronger than it is, or where there is ample evidence to support the conviction but a defendant is acquitted on a technicality having no merit (see R. v. Kwok Moon Yan [1989] 2 HKLR 396).

5.In this case, the magistrate was plainly well aware of the relevant considerations and explained that he declined to award costs because he believed the appellant had brought suspicion on himself and at paragraph 4 of his ruling, he set out in detail why he believed this to be so.

6.In Tong Cun Lin v. HKSAR [2000] HKLRD 113, the court held, inter alia, that "the section gave a wide discretion to the trial judge who was in the best position to assess the large number of factors relevant to the exercise of that discretion. It was not intended that, in the discharge of his function under section 73A, the judge should add substantially to the costs by entertaining lengthy submissions. His reasons for exercising his discretion must necessarily be brief. It was only where it could be shown that the judge has clearly gone outside the ambit of his powers that an appellate court's function became engaged". The court was there dealing with the now repealed section 73A of Cap.221, the same principles here apply.

7.The learned magistrate in this case demonstrated that he was aware of the law and of the sort of matters he should consider when exercising his discretion. I am unable to say that he has exercised his discretion in a way which would enable this court to interfere. The application is dismissed.

Representation:

Ms Rosaline S.Y. Leung, SGC of the Department of Justice, for HKSAR

Mr Philip Tang of Messrs Hampton, Winter & Glynn, for the Appellant