Hui Yui Sang v. HKSAR

FACC No. 10 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2005 (CRIMINAL)

(ON APPEAL FROM HCCC NO. 331 OF 2004)

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Between

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Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Fuad NPJ and Sir Thomas Eichelbaum NPJ

Date of Hearing: 8 May 2006

Date of Judgment: 23 May 2006

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J U D G M E N T

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Mr Justice Bokhary PJ:

1.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

2.The appellant was acquitted after trial before a judge and jury of one count of possession of arms without a licence, contrary to ss. 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238.  His application for costs under section 5 of the Costs in Criminal Cases Ordinance, Cap 492 was refused by the trial judge (Deputy Judge Pang).  This is an appeal with leave against that refusal pursuant to s.31(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

Circumstances leading to this prosecution

3.The circumstances which gave rise to this prosecution were these.  On 28 November 2002, a parcel delivered by FedEx from Vancouver, Canada arrived at the Hong Kong International Airport.  The Airway Bill relating to the parcel stated that the recipient was one “An Y. Hui” and the address was the residential address of the appellant.  After the parcel had undergone X-ray checking, it was discovered that it contained two pistols placed inside a vase.  The matter was reported to the Customs and Excise Department and later the police.

4.In the morning of the following day, two police officers disguised as FedEx couriers went with the parcel to the appellant's address.  They were told by a domestic maid that he was not at home.  They declined the maid's offer to sign the receipt for the parcel and said they would return in the afternoon.  When they did return, they saw the appellant.

5.According to the officers, they asked him if he was “An Y. Hui” and he replied that he was.  They then asked him to produce his identity card which he did.  The identity card was in the name of Hui Yui-sang.  However, the appellant explained that the parcel was for him and that “An” stood for Andrew which was his English name and “Y” stood for Yui.  The officers asked the appellant to sign on the delivery note and he did.  They then left the parcel in the premises and left.

6.This alleged conversation was denied by the appellant in his statements to the police which were produced in evidence.  He did not testify or call any witness at the trial.  But in his statements to the police, he said that he was asked by the couriers to produce his identity card and he did.  They then asked him to sign for the parcel which he also did.  Before they left, he gave them a tip of $100.  After the couriers had left, he checked the parcel and found that it was not for him.  So he left home intending to go back to his office and ask his secretary to call someone from FedEx to take back the parcel.

7.As the appellant was leaving the premises, he was arrested by the police officers who were keeping surveillance outside.  They then searched his home, briefcase, office and safe deposit box.  They found various items including two air pistols and accessories (which had nothing to do with the present offence), certain documents and publications relating to firearms, some knives and handcuffs, some ammunition and the membership cards of two gun clubs.  It is quite clear from what was seized that he had a keen interest in firearms. The parcel had not been opened by him before the police arrested him.

The issue for the jury at the trial

8.The issue the jury had to decide at the trial was whether the appellant had knowledge of the pistols in the parcel.  The prosecution case was that it was he who had arranged for the two pistols to be delivered to himself from Canada and that he knew that the pistols were inside the parcel.  The defence was that he did not know they were there. 

9.Since the jury had acquitted the appellant, they must have done so on the basis that they were not satisfied beyond reasonable doubt that he had knowledge of the presence of the pistols in the parcel.

The issue for the judge in the costs application

10.The application for costs was made pursuant to s.5 of the Costs in Criminal Cases Ordinance.  This section which replaced a similar provision, s.73A of the Criminal Procedure Ordinance, Cap 221, confers upon a trial judge the power and discretion to make an award of costs to an acquitted defendant. 

11.The applicable principles in the exercise of this discretion were discussed in R v Ng Yui Kin and others [1983] HKLR 356 and R v Kwok Moon Yan and another [1989] 2 HKLR 396 when dealing with the former s.73A.  These principles were affirmed and elaborated by this Court in Tong Cun lin v HKSAR (1999) 2 HKCFAR 531 and Tsang Wai Ping v HKSAR (2005) 8 HKCFAR 80 in relation to s.5 of the present Ordinance.

12.As a general rule, the court should normally award costs to an acquitted defendant unless there are positive reasons to deprive him of such costs.  One of the positive reasons is that the defendant has brought suspicion upon himself.  It is common ground that the issue which the trial judge had to decide in this case was whether the appellant had by his conduct brought suspicion upon himself.  Having heard submissions from the parties, the judge held against the appellant and refused to order costs in his favour.

The Judge's reasons for refusing costs

13.It is not disputed that in exercising his discretion, the judge must consider the conduct of the appellant generally and that the most relevant conduct must be his conduct during the investigation and at the trial, including how he responded upon inquiry, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, the strength of the case against him and the circumstances under which he came to be acquitted.  See Litton PJ in Tong Cun Lin at 535.

14.In dismissing the appellant's application for costs, the judge said:

“The defendant will not have his costs for reasons I have explained in my discussion with [counsel] for the defence and for the reasons advanced by [prosecuting counsel] in his submissions in reply to [defence counsel's] application. …”

15.The reason which the judge explained during discussion was that the parcel was of a considerable size; that nobody in his reasonable mind would have signed for it without checking it and that by signing for it without doing so, the appellant had drawn suspicion upon himself. 

16.The reasons advanced by counsel on fiat in opposing the application for costs which the judge said he had relied on were unfortunately rather terse; they were neither focused nor particularly sound or helpful. 

17.First, it was said that the judge should take into consideration the weapons such as the knives and crossbows found in the appellant's possession and the ammunition kept in his safe deposit box.  However, in respect of these illegal weapons, Mr Darryl Saw SC leading Mr David Leung for the prosecution pointed out that some of the knives and ammunition were ruled inadmissible by the judge as having more prejudicial than probative value but the flick knives and crossbows seized by the police were not adduced in evidence as a result of a conscious decision by counsel.  Mr Saw accepts that while the knives and ammunition might be taken into consideration in deciding whether the appellant had brought suspicion upon himself, it would be improper, in view of the comments made by Sir Gerard Brennan NPJ in Tsang Wai Ping v HKSAR (2005) 8 HKCFAR 80 at 93, to rely on the flick knives and crossbows in the circumstances of the present case. 

18.In my view, this is a fair observation.  However, I do not think that in the circumstances of this case, where the issue before the jury was whether the appellant had knowledge of the presence of two pistols in the parcel, the fact that he had in his possession some other weapons and ammunition was relevant in the resolution of that issue.  And if it could not be proved beyond reasonable doubt that he had knowledge of the pistols in the parcel, it is difficult to see how possession of these other weapons and ammunition would be of any assistance in throwing light on whether he had brought suspicion upon himself in relation to the present charge.

19.The second reason suggested by counsel on fiat at the trial was that the judge should also take into account the answers given by the appellant when he was “confronted” by the police.  This was rather ambiguous.  If counsel was referring to the statements which the appellant subsequently gave to the police, they were mixed statements and, when they were considered together, amounted to little more than accepting delivery of the parcel but denying knowledge of its contents.  I do not think these statements were helpful at all. 

20.If counsel was referring to the alleged conversation between the undercover couriers and the appellant when he accepted delivery of the parcel, such evidence, as Mr Saw quite properly and fairly conceded, should not be taken into consideration.  This is because the alleged conversation, if accepted as true by the jury, would have been strong evidence tending to show that the appellant had expected to receive the parcel and already knew what was inside.  Since the jury had acquitted the appellant, it must follow that they had entertained some doubt as to whether such conversation had actually taken place; at least, they must have thought that what the appellant said in his statements was true or might be true.  The court cannot go behind the jury's decision.

21.The last reason offered by counsel on fiat at the trial was that the appellant was not under any pressure of time and had ample opportunity to check the parcel since he had given the couriers a $100 tip.  I do not think this matter can add anything to the point made by the judge during discussion.  After all, the appellant explained in his statements to the police that it was his practice to give a tip where he received a delivery and that on this particular occasion, he did so because it was the second time the couriers came to make the delivery.  Such explanation was not entirely unreasonable and it is impossible to say that the jury had not considered that it was true or might be true.

22.That leaves the reason mentioned by the judge, namely, by signing a receipt for the delivery of such a large parcel without checking whether it was really for him, the appellant had brought suspicion upon himself. 

Was the judge's decision wrong?

23.In the present case, there was clearly sufficient material for the prosecution to charge the appellant with possession of the firearms in question: the name of the recipient of the parcel closely resembled that of the appellant; it was to be sent to the appellant's home address where he had been residing for a number of years; it was dispatched from Canada on a date on which the appellant happened to be in North America; the appellant signed for delivery of the parcel without first making sure that it was for him; he had in his possession other articles, weapons and firearms; he had documents and publications relating to firearms including pistols of the same brand name as one of the pistols in question; he was a member of two gun clubs but did not have an arms licence.  As it turned out, the jury found him not guilty of the charge.  Just as a prosecution does not necessarily lead to a conviction, the fact that the prosecution had reasons to lay a charge against the appellant does not necessarily mean that he had brought suspicion upon himself. These are different matters: the first depends on whether there was a prima facie case; and the second depends on what was the appellant's conduct generally.

24.What then had the appellant done or omitted to do to bring suspicion upon himself in relation to the charge he faced?  Mr Niall Stirling leading Mr Robert Tibbo for the appellant submits that there was none and that the judge's reasons were flawed. 

25.According to the judge's reasoning, the appellant should, in the circumstances of this case, have checked the parcel before signing the receipt and it was his failure to do so that amounted to bringing suspicion on himself.  With respect, I cannot accept such reasoning.  Whether a person in his reasonable mind (to use the judge's words) would have checked a parcel immediately upon receipt must depend on the circumstances of each case.  Not every person would open it immediately.  Some may like to do it afterwards. 

26.In the present case, since the jury had acquitted the appellant, the starting point must be that it had not been proved that he had knowledge of the presence of the two pistols when he received the parcel.  In other words, the appellant did not know what was inside the parcel.  He was a businessman.  It would not be unusual for him to receive parcels, be they large or small, from time to time.  In fact, there was evidence that only less than 10 days before, on 20 November 2002, another parcel was delivered to his home address.  On the other hand, there was no evidence as to how often he would receive parcels, whether he would usually check them before signing the receipt or whether he would open the parcel immediately or some time afterwards.  He had to come home to take delivery and it would seem that he had to return to his office after that.  The parcel in question was delivered by a reputable courier.  There was nothing to suggest that there was anything special about the parcel, apart from its size or that it had to be opened immediately.  Bearing all these in mind, I fail to see why the appellant's failure to check it immediately before signing the receipt for the parcel could be considered as conduct bringing suspicion upon himself.  In these circumstances, I cannot find any sound basis for the judge's decision. 

27.Mr Saw seeks to support the judge's decision on the ground that on the evidence of this case, the judge could have exercised his discretion in the way he did and that an appellate court should be slow to intervene.  It is true that an appellate court would seldom interfere with the exercise of a discretion by the lower court.  This would be the case where the judge was entitled on the evidence to come to the conclusion which he did taking into proper consideration of all relevant matters.  But in the present case, the judge had apparently relied on the reasons advanced by counsel for the prosecution which, upon analysis, are not valid reasons.  He had also, as submitted by Mr Saw, overlooked the fact that the jury was not satisfied that the appellant had knowledge of the contents of the parcel in question.  And as I have said, the judge's own reasoning was also flawed. 

28.In my view, it was a wrong exercise of discretion by the judge and in coming to the conclusion that the appellant had by conduct brought suspicion upon himself, the judge had departed from accepted norms such that the appellant has suffered grave and substantial injustice.  This conclusion cannot stand.  There being no positive reason to the contrary, the appellant should have his costs of the trial.

Conclusion

29.For the reasons which I have discussed above, I am of the view that the appeal must be allowed and the judge's order set aside.  I would also order that the appellant be awarded the costs of his trial and the costs of this appeal.

30.Finally, I should add that this appeal illustrates the problems which sometimes face the court and the parties in dealing with applications for costs after an acquittal.  These applications often arise and counsel involved in criminal cases should always be prepared for such a situation.  In my view, it is prudent for defence counsel to consider before and not after the delivery of the verdict whether there are any grounds to apply for costs in the event his client is acquitted and if necessary, to take instruction on it.  Similarly, prosecuting counsel should also give consideration to this matter and take instructions from the Department of Justice before the delivery of the verdict.  It will greatly assist the court and expedite the matter if the parties could anticipate in advance what their respective positions would be.

31.At the invitation of the Appeal Committee, Mr Saw has very helpfully proposed an outline of the procedure to be adopted in applications for costs.  The Court is most grateful for his assistance.  It would be advisable that the following procedure be adopted in future:

(1) Immediately after a not guilty verdict is delivered, defence counsel should at an appropriate moment, indicate to the court whether he will make any application for costs.

(2) If an application for costs is made, prosecuting counsel should inform the court whether he opposes the application and if so, on what grounds.  He should also identify the facts relied on in support of such grounds.

(3) Unless otherwise directed by the court, both counsel should be ready there and then to make submissions to the court.  If, for whatever reasons, it is not convenient to hear the arguments then and/or if the matter has to be adjourned, the application should be dealt with as early as possible.

(4) Having heard submissions from the parties, the judge, in giving his reasons for allowing or refusing costs, should state precisely the grounds upon which he exercises his discretion and the facts relied on by him in coming to his conclusion. 

Mr Justice Ribeiro PJ:

32.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Fuad NPJ:

33.I agree with the judgment of Mr Justice Chan PJ.

Sir Thomas Eichelbaum NPJ:

34.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

35.The Court unanimously allows the appeal, sets aside the judge's order and orders that the appellant do have his costs of the trial and of this appeal.

Mr W Niall C Stirling and Mr Robert J H Tibbo (instructed by Messrs Kong & Chang) for the appellant

Mr D G Saw, SC and Mr David C Leung (of the Department of Justice) for the respondent