Wong Tat Ki v. HKSAR

FAMC No. 61 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 186 OF 2005 )

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 14 November 2005

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.Complaining of substantial and grave injustice, this applicant seeks leave to appeal to the Court of Final Appeal from a decision of the High Court dismissing his appeal against a magistrate’s refusal to award him his costs after acquitting him on a charge of claiming to be a member of a triad society, contrary to s.20(2) of the Societies Ordinance, Cap. 151.

2.Shortly stated, the prosecution’s case against the applicant was that during an encounter with a veterinary surgeon - “vet” for short - at an animal clinic in Yuen Long, the applicant scolded the vet in abusive language, thumped the table, claimed to be a triad member and told the vet that there was no future for his activities in Yuen Long.  The magistrate acquitted the applicant because he did not feel sure that he had actually claimed to be a triad member.  But the magistrate deprived the applicant of his costs on the ground that he had brought suspicion upon himself by scaring the vet by means short of claiming to be a triad member.

3.In the High Court the respondent declined to oppose the applicant’s appeal.  Nevertheless the appeal judge insisted upon being convinced that the appeal ought to be allowed.  And, not being thus convinced, she dismissed the appeal.  In our view, it is plain beyond reasonable argument to the contrary that the course taken by the appeal judge did not constitute a departure from accepted norms.  Although the magistrate did not express himself as clearly as he might have done, it is clear enough that he felt sure that the applicant did scold the vet in abusive language, thump the table and tell the vet that there was no future for his activities in Yuen Long.  The case for asking a court to believe evidence that the accused had claimed to be a triad member is naturally strengthened by evidence of his having behaved in an annoying, insulting and intimidating manner.  So the magistrate’s refusal of defence costs was so plainly within his discretion that the appeal judge was justified in affirming his exercise of discretion to refuse defence costs despite the respondent’s decision not to offer argument in support of that exercise of discretion. 

4.Accordingly leave to appeal is refused.

Mr W.N.C. Stirling (instructed by Messrs Rita Law & Co.) for the applicant

Mr David C. Leung (of the Department of Justice) for the respondent