Read the full judgment text of FACC 000010/2005 on BabelCite. This FACC judgment was delivered on 23 May 2006 before Bokhary PJ, Chan PJ, Ribeiro PJ, Fuad NPJ, Eichelbaum NPJ.
Criminal law – costs – Costs in Criminal Cases Ordinance (Cap 492) s.5 – application for costs by acquitted defendant – whether defendant brought suspicion upon himself – Firearms and Ammunition Ordinance (Cap 238) ss. 13(1) and (2) – charge of possession of arms without licence – appellant acquitted by jury – trial judge's refusal of costs – Hong Kong Court of Final Appeal Ordinance (Cap 484) s.31(b) – appeal by acquitted defendant against refusal of costs – whether judge wrongly exercised discretion – general rule that acquitted defendant should receive costs unless positive reason to deprive – one positive reason: defendant brought suspicion upon himself – principles from R v Ng Yui Kin, R v Kwok Moon Yan, Tong Cun lin v HKSAR and Tsang Wai Ping v HKSAR – relevant conduct: conduct during investigation and at trial, responses upon inquiry, consistency of answers, strength of prosecution case and circumstances of acquittal – appellate restraint in disturbing discretion of trial judge – judge's reasons for refusing costs – signing for large parcel without checking it – flawed reasoning: reasonableness of checking parcel depends on circumstances – other weapons and ammunition seized irrelevant to charge of possessing pistols in parcel – alleged conversation with disguised couriers could not be relied upon given acquittal – $100 tip not inherently suspicious – court cannot go behind jury's acquittal – no sound basis for finding appellant had brought suspicion upon himself – wrong exercise of discretion amounting to grave and substantial injustice – appeal allowed – trial judge's order set aside – appellant awarded costs of trial and of appeal – proposed procedure for future costs applications after acquittal.
Legal issues: Whether the trial judge erred in refusing costs to an acquitted defendant on the ground that he had brought suspicion upon himself
Outcome: Appeal allowed; trial judge's order refusing costs set aside
Cited by 2 cases