HKSAR v. Khan, Munsaf

HCMA 143/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 143 OF 2006

(ON APPEAL FROM KTCC 6504/2005)

______________________

BETWEEN

______________________

Before : Hon Beeson J in Court

Date of Hearing : 25 April 2005

Date of Judgment : 16 June 2006

______________________

J U D G M E N T

______________________

1.This Appellant was charged with, tried on, and acquitted of one charge of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200.

2.At the end of the trial, counsel for the Appellant applied for an order for costs which was refused.  The Appellant appeals against the Magistrate’s refusal.

Brief Facts

3.The complainant was an Indonesian domestic helper employed by the Appellant’s wife.  The prosecution alleged that on the day of the offence, after the Appellant’s wife had left home, the complainant was indecently assaulted by the Appellant who grabbed her breasts from behind, pulled her into the toilet and tried to touch her private parts.  The complainant resisted successfully and returned to the kitchen.  Later, the Appellant came behind her and tried to kiss her.  He embraced her and rubbed his penis on her body.  The complainant felt dampness on her trousers and saw a sticky wet liquid.  She put the trousers into a plastic bag and later handed it to the police.  It was not disputed that semen found on the complainant’s trousers was that of the Appellant.

4.The basis of the defence case was that the complainant lied about the incident, and had tried to frame the Appellant by making a false complaint and by manufacturing evidence.

5.The Appellant elected not to give evidence.  His wife gave evidence that the complainant’s work was unsatisfactory and confirmed that she left home at 7:45 am on the day of the offence.  The second witness, the son of a friend of the Appellant, worked as a security guard in a bank and gave evidence that 3 weeks after the incident the complainant told him she would settle the matter if the Appellant paid her HK$50,000.00.  A third witness gave character evidence for the Appellant.

6.The Magistrate found the evidence of Appellant’s wife (DW1) did not assist the Appellant’s case.  It was quite clear he did not believe the evidence of the security guard (DW2).  The Magistrate found some inconsistencies in the evidence of the complainant which he felt were understandable, because she had been cross-examined for 3 days.  He found they were not material.  He found (para 17, Statement of Findings), that he did not believe the complainant fabricated the whole incident and had no doubt that the Appellant had been involved in some improper behaviour towards her as a result of which semen was left on her trousers.  However, he was left with a doubt-the possibility, although very slight - that the Appellant may have believed some implied or express consent existed. 

7.This appeared to be because the complainant alleged a prior history of indecent touchings about which she had made no formal complaint.  On that basis he acquitted the Appellant but refused to make an order for costs as the Appellant obviously ejaculated in front of the complainant.  He concluded that in doing so, the Appellant had brought suspicion upon himself and exercised his discretion not to award costs.

Ground of Appeal

8.Perfected grounds of appeal were filed.

(1)	The Magistrate erred in refusing costs having found
	“	… the possibility, however slight, that consent, be it implied or express, existed during the incident.  The benefit of doubt was given to the defence”.
(2)	The Magistrate’s refusal to make an order for costs was erroneous in view of the fact that express or implied consent existed at the material time, indicating relations between two consenting adults,
(3)	The Magistrate failed to consider that the location of the semen stain on exhibit P2, was inconsistent with and did not agree with the complainant’s testimony about the site of the release of ejaculation by the Appellant.
(4)	The Magistrate failed to consider that in all the circumstances of this case there was a real possibility that the Appellant was framed by the complainant who had been advised by a Christian action group that to make a successful complaint of sexual assault she had to obtain physical evidence or audio-recordings.

9.The Magistrate noted the principles governing the awarding of costs to successful Defendants in HKSAR v Tong Cun Lin [2000] 1 HKLR 113 and referred to other relevant cases, including HKSAR v Li Siu Tong HCMA 547/2000.  The exercise of the power is in the unfettered discretion of the court and obviously to be exercised according to the facts of each case.  Normally an order should be made unless positive reasons for not making such an order exist.  Positive reasons include conduct bringing suspicion upon himself, or leading police to believe the evidence against him is stronger than it is.

10.An acquittal on some technicality may also be a positive reason for refusing to make an order.

11.In Tong Cun Lin (supra) Mr Justice Litton, PJ said:

“The section gives a wide discretion to the trial judge who, of all people, is in the best position to assess the large number of factors relevant to the exercise of that discretion….  It is not intended that, in the discharge of his function under s. 73A, the judge should add substantially to the costs by entertaining lengthy submissions.  His reasons for exercising his discretion - one way or the other - must necessarily be brief.  It is only where it can be shown that the judge has clearly gone outside the ambit of his powers - such as, for example, taking into account a factor which plainly is not relevant to the exercise of those powers - that an appellate court’s function becomes engaged.”

12.I considered the facts of the case, and whether the Magistrate had exercised his discretion within the ambit of his powers.

13.The complainant gave evidence about previous indecencies allegedly committed by the Appellant about which no complaint had been made.  This was not because the complainant approved the behaviour, but because she was a domestic helper who was in debt because she was required to repay a large sum of money for agency fees and would lose her job if she complained.

14.The Magistrate had considered the complainant’s inactivity in relation to alleged previous indecencies might possibly have given the Appellant the idea that she was consenting, however unreasonable such an assumption might be.

15.Despite the Appellant’s counsel putting forward various scenarios, the Magistrate did not believe this was a case of the Appellant being framed by the complainant.  She underwent 3 days of cross-examination, giving the Magistrate ample time to decide whether the Appellant had a case to answer, or whether the complainant had been endeavouring to frame him.

16.The Magistrate took into account the facts, in particular that the Admitted Facts, pursuant to Section 65C of the Criminal Procedure Ordinance, Cap. 221, included agreement that the semen of the Appellant was found on PW1’s trousers and that the chain of evidence for that item was not disputed.  He concluded that the Appellant did ejaculate at the material time in front of the complainant.  Further, the complainant was a domestic helper working for the Appellant’s family and although the wife was the employer, the Appellant de facto had an employer - employee relationship with the complainant.  The Magistrate considered that in acting as he did the Appellant brought suspicion on himself in relation to the Indecent Assault.

17.I have considered the grounds of appeal but am not persuaded by them.  The Magistrate did not err in refusing costs having given the Appellant, as he was required to do, the benefit of the doubt.  That did not mean, necessarily, that he was satisfied about the Appellant’s conduct in relation to the award of costs.  The Court of Appeal in Kwok Moon Yan [1989] 2 HKLR 396 stated:

“an award of costs is discretionary and there is no ‘standard of proof’ in the accepted trial sense”

18.Ground 2 was not made out as, contrary to the Appellant’s submission, the Magistrate did not find that express or implied consent existed - he thought it a mere possibility.  It was suggested to the complainant that she consented but that was denied.  It is difficult to see how any valid consent could have been imputed to the complainant given her inferior and vulnerable position as an indebted helper who was likely to be dismissed immediately if her employer found her in any intimate contact with her husband.

19.The question of where the semen stain was located was a matter covered at trial as well as in submissions (B27-B34) and one that could not fail to have been considered by the Magistrate in assessing credibility.  In relation to an award of costs however it was not the location of the stain which was relevant, but why it had come into existence at all.

20.The allegation of framing (Ground 4) was covered at length at trial - again that was a matter for the Magistrate.  It was not disputed that advice was given to the complainant about what evidence would be needed, but similar advice would have been given by any police officer or lawyer she might consult.  Just because advice was sought and given does not mean, necessarily, that the complainant intended to, or did, frame the Appellant.  It seems inherently improbable, if the complainant had intended to frame the Appellant, that she would have made any reference at all to seeking advice, or that she would have called the giver of the advice as a witness.

21.The person in the best position to weigh matters relevant to the award of costs is the tribunal of fact.  An Appellate Court should be slow to interfere with the exercise of such discretion, unless there is a very good reason.  The Magistrate had the advantage of hearing the complainant give evidence under cross-examination for 3 days.  It is not for this court to interfere unless it is shown that he took into account a factor that plainly was not relevant to the exercise of his discretion, or that no reasonable tribunal would have reached the same conclusion on the information before the Court.  That has not been demonstrated.

22.Accordingly, the appeal against the decision of the Magistrate to refuse costs is dismissed.

Mr David C Leung, SGC, of Department of Justice, for the Respondent

Ms M Panesar, instructed by Messrs B Manek & Co., for the Appellant