HKSAR v. Qamar, Sheraz

HCMA 160/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 160 OF 2006

(ON APPEAL FROM TMCC 700159/2005)

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BETWEEN

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Before: Deputy High Court Judge Line in Court

Date of Hearing: 29 June 2006

Date of Judgment: 12 July 2006

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J U D G M E N T

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1.This is an appeal against an order refusing the appellant his costs following his acquittal in the magistrates court.  I am not going to make an order in his favour as it would offend my sense of justice to do so.  In order to explain why I will need to tell the story of what happened.

2.It was in October of last year that a young lady was walking along a road in Tin Shui Wai, when a youth, who appeared to be of Pakistani origin wearing a white shirt and black trousers snatched her telephone from her hand and ran away.  By chance this crime was witnessed by a public minded citizen looking out of his window down onto the scene of what had taken place.  He was the second prosecution witness at the trial.  He went down to look for the thief, and some 15 minutes later he recognised the appellant, dressed as just described, walking near the ground floor of his building as the thief and so he followed him to the entrance of a nearby park and apprehended him.  The appellant struggled and the witness called to a passerby for help.  This passerby was the third witness at the trial. They both grabbed hold of the appellant and sat him down.  The appellant then made off and there was a short chase further into the park before he was recaptured and held.  The police were summoned and an officer arrived.

3.The evidence of the police officer was that he searched the appellant and found upon him two mobile telephones, a dark one and a silver one.  There was no doubt that the silver one had belonged to the victim of the crime as it contained her personal pictures.  The attending police officer, who was the fourth prosecution witness, also testified that the appellant, on being cautioned, said that he had snatched a woman’s mobile telephone for his own use out of momentary greed.

4.The appellant did not give evidence at the trial.  He was acquitted.  That result arose in this way.

5.The second prosecution witness said this:

“inside the park, I saw a mobile phone in the defendant’s hand.  I came to know that when I grabbed hold of him.  I only know it was silver in colour.  When the police arrived the phone was with the male pedestrian (i.e. the third prosecution witness) and it was in the hand of his wife.  It was silver in colour.  I don’t know what brand it was or whether it could be folded.  I did not pay attention.  Nor do I know how big or small it was.  After the police arrived the mobile phone was handed to the police.”

6.The third prosecution witness said that he saw a mobile phone at what must have been the stage when the appellant was initially subdued and before he broke away.  He was referred to a witness statement that he had made and agreed that at that time of making it he could remember the colour of the phone.  He had said in the statement that it was a dark coloured mobile phone with a bunch of keys attached to it.  He said that he had chased after the appellant without losing sight of him until the police came and that until that time the appellant held the dark coloured mobile telephone in his hand.

7.The attending police officer said that he conducted a search of the appellant and found the two mobile telephones in his pockets.

8.The magistrate said that these witnesses appeared to him to be honest and reliable but that the conflict apparent between them gave rise to a lurking doubt in the prosecution case and that the appellant was entitled to the benefit of that and so found him not guilty.

9.Of course, the unresolved conflicts of evidence meant that no tribunal of fact could be sure as to exactly which telephone was where at which particular time.  It is trite law that a tribunal of fact does not have to know the answers to every issue that arises in a trial.  The burden of proof attaches to those matters which go to prove guilt.  This is obviously so as it is the common experience of the courts that honest witnesses doing their best to recollect events will appear to differ, especially when those events were fast moving and especially in summary trials where the pace of the proceedings does not encourage exhaustive questions to iron out such matters.  Sometimes of course there will remain conflict that is not amenable to resolution either way.  The important point then to consider is how the doubt thereby created as to the subject matter in question affects the real issues.

10.It is with due respect to the magistrate that I judge the problems he saw did not go to the real issue, which was one not of the detail of who had the silver telephone where, when and at what stage, but how did it get to that place in the park where those public minded citizens had apprehended the appellant and where the police officer arrived.  I mention that they were public minded citizens, and obviously strangers to the appellant, because it indicates to me that they would not consciously involve themselves in any underhand or dishonest strategy falsely to implicate the appellant.

11.It seems to me that the victim’s silver telephone could have arrived at the time and place in question in these ways:

(1)     The policeman took it there having come across it in some way that can only be guessed at;

(2)     Either the second or the third prosecution witness (or the latter’s wife who was present) took it there;

(3)     A thief who was not the appellant dropped it there having gone to the effort to steal it but then discarding it as a point which I was told was only some hundred feet or so from the scene of the crime;

(4)     A thief who was not the appellant dropped it elsewhere and someone else took it to the place in question; and

(5)     The appellant took it there.

12.In the circumstances that existed here, I regard the first four explanations as being fanciful.  I judge that the fifth explanation is the only reasonable explanation to be inferred.  In drawing that inference it was to be noted that there was no sworn evidence from the appellant to contradict it.

13.I judge that whatever one may think about the quality of the identification of the appellant by the second prosecution witness, his possession of the stolen telephone so shortly after the commission of the crime, in the absence of an explanation, indicated guilt.

14.I am asked to exercise my discretion as to costs in favour of the appellant.  I decline to do so given my view of the facts.  I agree that there was a mistake in the magistracy, but I see that mistake as being the appellant's acquittal.  The question arises, does any law or practice stop me from acting upon my view of the facts.  To answer that question involves looking at the effect of an acquittal and the nature of the task I have to undertake.

15.As to the nature of the task I have to undertake, it seems to me that I must exercise my discretion afresh however it is that I have jurisdiction.  No one doubts that I have jurisdiction but there may be some doubt as to how I have it.

16.Section 19(1) of the Costs in Criminal Cases Ordinance, Cap. 492 provides that:

“Where a court or a judge has made an order that costs be awarded to any of the parties to the proceedings any of such parties may appeal against that order”

17.Gall J in HKSAR v. Coghlan HCMA 1004/1998 held that where a magistrate declined to make an order of costs in favour of an acquitted defendant, section 19 had no application but that a judge had jurisdiction to entertain the appeal because an order had been made refusing the application for costs, and that such an order could be appealed pursuant to section 113(1) of the Magistrates Ordinance.

18.If this appeal does come before me by way of section 113(1) of the Magistrates Ordinance then I rehear the matter and make the decision on the material before me and I have available to me all the powers set out in section 119. (see Chou Shih Bin v. HKSAR FACC 11 0f 2004)

19.If in fact a refusal of costs is an award of no costs and that “award” of no costs engages section 19 of the Costs in Criminal Cases Ordinance then section 19(4) applies.  It reads thus:

“On an appeal under this section a court or a judge shall, if it or he allows the appeal, quash the order which is the subject of the appeal and subject to subsection (5), make such order for costs in place of it, as it or he thinks appropriate for the case.”

20.It is thus in respect of the ordinance that I have power to make such order for costs as I think appropriate for the case, but only if I allow the appeal and quash the appealed order.  This provision applies to appeals that arise in cases on indictment equally as to summary trials.  The process of appeal is not simply a rehearing as it is in summary cases.  I have to consider the magistrate’s order and decide if it should be quashed and it is only then that I have the power to make what I consider to be the appropriate order.

21.The reason the magistrate gave for not awarding costs following the acquittal was that the appellant brought suspicion upon himself because:

(1) he tried to run away;

(2) he was in possession of the victim’s silver mobile telephone according to the second and fourth prosecution witnesses; and

(3) he made the verbal admission.

22.Even though I agree with the result that the magistrate reached, I do not do so for the same reasons.  The appellant was 16 years old at the time and I would not regard seeking to run away in the circumstances, if he was innocent of the charge, as bringing suspicion upon himself.  That did not prompt his prosecution: it was the identification coupled with his possession of the stolen telephone and the admission which did that.  What it appears to me the magistrate did was to repeat the facts which made the appellant guilty in support of the claim that he brought suspicion upon himself. 

23.There are obviously problems with the magistrate taking the same facts to justify no order for costs when he judged that they could not support a conviction, when no other facts would justify his order.  I need not debate the matter further, because if he was right, but the wrong reason, and his order should not be quashed, the result is the same as I would achieve.  If by taking the wrong route to the right order, the order should be quashed then that allows me the freedom to make the order I think appropriate.

24.Thus it is the case that, by whatever route, my job is to look at the facts as they are presented to me and to exercise my discretion judicially in making an appropriate order.

25.Does the fact that there was an acquittal prevent me from taking a different view of the facts when it comes to exercising my discretion judicially on appeal?  In this context I perceive there to be a difference between appeals from summary cases and appeals on indictment involving the decisions of juries, as our system of justice allows far greater interference with decisions made summarily when reasons are provided by a professional tribunal than it does upon a verdict of a jury.  If the acquittal in this case had been that of a jury, I would not have been able to judge their reasons for it, as I can the magistrates reasons here, and I would not have known what basic facts the jury found established, but I know them here.  I accept that a judge hearing an application for defence costs would not be able to take a view of the facts palpably different from that taken by a jury, as was pointed out by Litton PJ in Tong Cun Lin [2000] 1 HKLRD 179.  Our courts spend much time examining the reasoning set out in magistrates’ statements of findings in summary cases, usually at the behest of a convicted appellant.  I can see no reason why the same task cannot be undertaken in an application for costs.  If it is possible to identify an obvious mistake which led to an acquittal in a summary case, what consideration of justice, common sense or judge-made law requires a judge on appeal to compound the error?  I can see none.

26.There is a dearth of authority on the specific point, not just due perhaps to the fact that many a recipient of an unmerited acquittal will lack the effrontery to demand his costs on appeal but more likely that other jurisdictions do not share our system whereby summary decisions are explained with reasons in a statement of findings by a professionally qualified tribunal.  I am not in the dark, and I do not have to guess at the reasons and facts that have led to the case being in front of me.

27.The case of R v. Z [2000] 2 AC 483 in the House of Lords established that the rule in Sambasivam to the effect that a verdict is binding and conclusive in all subsequent proceedings between the parties required qualification to confine it to the context of double jeopardy and that nothing in the law required that a defendant be not troubled twice with the same evidence, even though it had earlier led to his acquittal.

28.In the exercise of my discretion on the facts here, I judge that the same evidence that led unmeritoriously to an acquittal justifies making no award of costs to the appellant and such remains the appropriate order.

Mr Cheung Wai-sun, Deputy Principal Government Counsel of the Department of Justice, for the Respondent

Mr Oliver H. Davies, instructed by Vidler & Co., for the Appellant