HKSAR v. Cheung Kam Lun and Others

HCMA593/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 593 OF 2005

(ON APPEAL FROM KCCC 730 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge Toh, in Court

Date of Hearing : 15 September 2005

Date of Judgment : 15 September 2005

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JUDGMENT

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1.This is an appeal against a magistrate’s refusal of costs after her acquittal of the Appellants after trial.  Each of the six Appellants were charged originally with claiming to be a member of a triad society and assaulting a police officer.  The police officers involved in the assaulting charges were in fact four police officers.  The first four of the Appellants were also charged with criminal damage.

2.The prosecution case, as it emerged, was that, in the early hours of the morning, four police officers were patrolling by car when they saw the 2nd, 3rd and 4th Appellants and the police officers noted that there were something bulging from the waist area of these defendants, so feeling suspicious, these four police officers alighted and intercepted the Appellants for investigation.  After they had conducted a body search, nothing suspicious was found and, when they were about to leave, the 1st, 5th and 6th Appellants came out of a nearby bar.  According to the police officers, they started shouting at the police officers, using foul language.  Suddenly, the police evidence was, the Appellants attacked them.  The situation became chaotic and it is the police evidence that the first four Appellants had dashed towards a private car and that would appear to give rise to the criminal damage charges.  Eventually, reinforcements were called and all six of the Appellants were subdued and arrested.

3.It was put to the police officers, as part of the defence case, that the defence agreed that the 2nd to the 4th Appellants had been originally intercepted by police and that the 1st, 5th and 6th Appellants had appeared towards the end of the investigation.  The defence case was that the Defendants were very co-operative.  It was the police who started using foul language and violence.  The defence then put the case on the basis that there was pushing and shoving between the police and the Defendants, leading to a chaotic situation.  None of the Defendants gave evidence, nor called any witnesses.  At the end of the day, the learned magistrate acquitted the Appellants of all charges. 

4.As a result of the acquittal, the Appellants had applied for costs.  The learned magistrate, after considering the submissions, rejected the application, except for costs in relation to two hours wasted by the prosecution at the end of the second day of trial.  The Appellants now appeal against that refusal of order of costs.

5.It is not in dispute that a magistrate’s granting or refusal of the order of costs is based on her discretion.  It is also trite law to say that an appeal court would be slow to interfere in the magistrate’s use of her discretion unless she has used her discretion wrongly, or it is demonstrated that she had done so unreasonably in the circumstances, and perhaps a reasonable magistrate would not have refused costs in the same circumstances.  So it is really a situation where the learned magistrate is in fact the right person to consider the circumstances as to whether costs ought to be given.  She was the person who heard the evidence and she was the person who, at the end of the day, to have decided to acquit the defendants.

6.It is also not in dispute that the main case on this use of the court’s discretion is the case of Tong Cun Lin v HKSAR [2000] 1 HKLRD 113, and at page 117, the Court of Final Appeal, Litton PJ, had this to say:

“In considering whether a Defendant should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time...
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 those 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.”

7.As Mr Leung, for the Respondent had pointed out in his submissions, in the case of HKSAR v Li Siu Tong & Others HCMA547/2000, Hartmann J had this to say:

“What amounts to ‘relevant’ conduct will differ according to the circumstances of each and every case. While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent the magistrate from considering the Appellants’ actions directly surrounding the alleged criminal conduct.”

I would echo the learned words of Hartmann J.  

8.Mr Stirling, on behalf of the first five Appellants, was insisting that because the learned magistrate had acquitted, she had acquitted because she found the police - the prosecution witnesses - evidence unreliable and, therefore, she disbelieved them and acquitted the defendants.  Therefore, when considering costs, she could not rely on that same evidence to refuse costs. 

9.Let us look at what the learned magistrate actually said.  The learned magistrate, when giving her reasons for refusal, had said, at paragraph 12 of her reasons, at page 52 of the record appeal bundle:

“The Prosecution was unable to prove any of the charges beyond all reasonable doubt because of the poor quality of the evidence. The police officers all stated that the situation was very chaotic at the time and there was a large number of discrepancies in their evidence. PW2’s evidence was also self contradictory in many respects.”

It is clear that the learned magistrate is not saying that the police officers were lying.  She is saying that the situation was chaotic; thus the police officers’ evidence was of a poor quality and therefore she was unable to find that each of those charges had been proved beyond a reasonable doubt.  She expanded on that, that the reason why she found the evidence unreliable was because there were discrepancies and one of the prosecution witnesses was self-contradictory in many respects.  It is clear that the learned magistrate is saying here that she found that there was a doubt and she is giving the benefit of that doubt to each of these defendants, very properly and fairly.

10.The learned magistrate, at paragraph 13, then goes on to say that she did not believe the version of facts put forward by defence counsel, because, she is saying, that if the defence was saying that they were co-operative, there was no reason for the police officers to use violence and for them to call in reinforcements, and the police officers would not have sustained injury, as admitted by the defence, under section 65C.

11.The learned magistrate then went on and very properly considered the cases relevant to an application for costs.  She very correctly reminded herself as to what she has to look for.  What the learned magistrate then went on to say, at paragraph 16, is that even, according to the case put forward by the Defendants in the present case, even if she was to believe the defence case that there was an altercation between the police and defence and that there was an exchange of abusive language and pushing and shoving, at the end of the day, there was no dispute that the police officers had sustained injuries, there was damage to a private car, and all this was admitted under section 65B.  So even if she had believed the defence case as put forward, the Defendants, by their conduct, have brought suspicions upon themselves. 

12.So I do not agree with the Appellants’ counsel that the learned magistrate was saying that she was basing her refusal of costs on the fact of pushing and shoving between the police officers and the defendants when she had rejected the defence case.  What she is saying is that, on the evidence before her, she found that the conduct of the Defendants had brought suspicion upon themselves and that, even if she had accepted the defence case, which she said she did not, that the defence case shows that the Defendants were acting in a manner which brought suspicion upon themselves.  So that is what the learned magistrate was saying.

13.Finally, I would like to refer to the case that Mr Leung has also submitted, and that is the case of HKSAR V Leung Kong Kei & Others, which is also a Magistracy Appeal, No. 1253/2001.  Again this was an appeal against the refusal by the learned magistrate to award costs after acquitting the Appellants in that case of obstructing police officers in the due execution of their duty.  That case happened in the early hours of the morning in a karaoke bar.  Suffiad J, in that case, found that there was ample evidence of the unruly conduct of the Appellants, and it was precisely the unruly conduct of the Appellants which led to the obstruction charge.  The case put forward by defence counsel in that case was also that the Appellant did use abusive and foul language to the police officers and all this behaviour of the Appellants had an impact on the chaotic situation pertaining at the time.  So Suffiad J found that the learned magistrate could not be faulted in refusing costs because it is clear that the Appellants had brought this matter upon themselves.

14.The fact is that in this case, the evidence of the prosecution was that there was an investigation of three of the Appellants in the early hours of the morning.  It went off reasonably calmly until the arrival of the other Defendants when, together, all six of them started shouting at the police officers and then violence ensued.  It is clear, as I have said, from the learned magistrate’s refusal of costs, that she acquitted the Appellants because of the evidence of the police officers whom she found were unreliable in that there were discrepancies and one of them had contradicted himself.  As I have said, that does not mean that the learned magistrate had found that all the prosecution witnesses were telling lies.  What she is merely saying is that she could not, when relying on each of their evidence, on each of the particular charges, say that the charge had been proved beyond a reasonable doubt, that a doubt had been raised, and therefore she acquitted.  So it is not a blanket dismissal of the prosecution case. 

15.The defence had not given evidence and, in fact, the cases put forward by the defence to the prosecution witnesses were rejected by the learned magistrate.  The learned magistrate very properly, in her refusal of costs, had looked at all the surrounding circumstances, including the conduct of the Appellants, and very properly, I find, at the end of the day, refused costs. 

16.The learned magistrate’s conclusion, I find, cannot be faulted and I refuse to interfere in the exercise of her discretion.  So this appeal is therefore dismissed.

Representations:

Mr William Stirling, instructed by Messrs Kong & Chang, for the 1st to the 5th Appellants

Mr Paul Francis, of Ong Hean Cheng & Company, for the 6th Appellant

Mr David Leung, SGC, for the Respondent