HKSAR v. Chan Kwok Tai

HCMA1200/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1200 OF 2005

(ON APPEAL FROM KCCC 4985 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  28 February 2006

Date of Judgment:  28 February 2006

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JUDGMENT

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1.This is an appeal against a refusal to award a successful defendant in the magistrate’s court his costs. 

2.The appellant was acquitted of a charge of living on the immoral earnings of a prostitute.  The evidence against him below was that he turned up to what was undoubtedly a brothel, a vice establishment, with a lady who had arrived that very day from China and that he then made admissions to the police which demonstrated that he was controlling her movements knowing that she was involved in prostitution.

3.The admissibility of what he said to the police was in issue and the magistrate was not satisfied that the admissions were voluntary and he therefore excluded them.  The basis of that was that there had been threats and inducements made by a police officer. 

4.It is thus not a case where it would be right for me to look at that statement in order to say that the appellant had brought the prosecution on himself or made it stronger.  It would obviously be right to look at a statement, which was excluded for some other reason, where the appellant’s case was, “I said all those things, but the police were blameless in that.  I did it because I was drunk”, or for whatever reason.  It is not that sort of case.  So I cannot look at what he said in that statement to say that he made the prosecution think the case against him was stronger than it was.

5.Nothing exists in the evidence before me that the respondents can point to which show that he did anything to make the prosecution think that the case against him was stronger than it was.

6.What affected the magistrate’s judgment was the fact that the appellant had made a complaint to CAPO at the time, but he had declined to give any details of the complaint to CAPO. In my judgment, that cannot have led the prosecution below to think the case against him was stronger than it was.  He merely revealed some of his defence and he was not obliged to reveal any more of it.

7.In a system where a complaint against the police is revealed to the prosecution, it is a commonplace that the legal advice given is do not give the detail.  That is based on the fact that in the fight between the prosecution and defence, you furnish the prosecution with some ammunition, you give them an account upon which they can cross-examine you.  It is a commonplace that evidence, even if it is honest, will sometimes not sit easily with the contents of a statement, even if that was honest.  So the thought is, why give the other side extra ammunition?  This man was not obliged to do so and the fact that he did not give that extra ammunition is not a reason to deprive him of his costs.

8.So the order I make today is that the appeal is allowed.  The respondent will have to pay the appellant’s costs both here and below to be taxed if not agreed.

Ms Polly Wan, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Edward Chan, of Messrs Chan, Wong & Lam, for the appellant