HKSAR v. Perez Sanchez, Martin

HCMA449/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.449 OF 2006

(ON APPEAL FROM ESCC 1321 OF 2006)

---------------------------

BETWEEN

---------------------------

Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 19 September 2006

Date of Judgment : 19 September 2006

-----------------------

J U D G M E N T

-----------------------

1.The appellant, Perez Sanchez Martin, was charged with Attempted Theft, contrary to section 9 of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200.  He was acquitted after trial by the magistrate.  On the same day, the appellant applied for costs and was refused.  The appellant now appeals against the order of refusal of costs.

Prosecution case

2.The prosecution case shows that PW1 was the owner of a particular suitcase with contents of value.  On the day in question, after returning from overseas, PW1 arrived at the station and unloaded the suitcase (it was one of five pieces of luggage) from the train onto the platform.  When he returned to move the rest of the luggage, he saw the appellant carrying that particular suitcase into the train.  When he asked the appellant why, the appellant replied he was trying to help the two women passengers on their way to the airport.  A sergeant whom PW1 hailed asked the ladies but they both said they neither knew the appellant nor had asked him to help, nor did they have any luggage.

Defence case

3.The appellant was represented at the trial and he gave evidence.  He had no criminal record.  He had a sound business background and he frequently travelled between the United States and the Mainland via Hong Kong on business trips.  He also was an American Express Gold Card holder.  When he was arrested he had US$9,000 on him.  He alleged that he mistakenly believed that that particular suitcase belonged to the two ladies and that was why he took the suitcase onto the train.

The magistrate’s findings

4.The magistrate accepted the appellant’s version that the particular suitcase was near the two ladies and the appellant mistook that suitcase belonged to the ladies and so moved that suitcase for them.

5.The learned magistrate also found that the appellant was on the way to depart Hong Kong and already had two pieces of luggage himself.  He doubted that the appellant would steal somebody else’s suitcase.  Having considered all the evidence, the learned magistrate found “the picture not fit that of a thief” and then he acquitted the appellant.

6.The magistrate however refused the application for costs because he found PW1 reliable and that the particular suitcase had indeed been moved by the appellant.  Although the moving of the suitcase did not necessarily indicate the guilty mind, the learned magistrate found that the appellant, having agreed not have previously seen any luggage belonging to the ladies, had nevertheless taken that suitcase onto the train had brought suspicion onto himself.

Reasons for refusal

7.The reasons given by the learned magistrate for the purpose of the appeal were :

“      As to the application for costs, the criteria for awarding costs are well known. The question of legal costs or other costs incurred by a defendant is not a criterion.  How the prosecution decides to investigate a case is not a criterion.  And the prosecution deciding to proceed to trial in a court is not a criterion.  For reasons already stated in the verdict the application for costs is declined.”

Grounds of appeal

8.As to the grounds of appeal, there were three grounds adduced.  They can be shortly stated : the magistrate had failed to indicate what were the actual grounds save saying some generally governing principle; and it is not consistent when the magistrate had found the defendant to be innocent, mistakenly believing the suitcase to have belonged to the ladies, and yet refused costs.

Judgment

9.The Costs in Criminal Cases Ordinance, Cap.492 provides, in terms of section 3, that where a magistrate has acquitted the defendant, he may order that costs be awarded to that defendant.  The ordinance does not lay down the principles governing the exercise of the magistrate’s discretion.

10.The applicable principles in the exercise of discretion were discussed in R. v. Ng Yui Kin and others [1983] 2 HKLR 356 and R. v. Kwok Moon Yan and another [1989] 2 HKLR 396 when the courts dealt with the now repealed section 73A of the Criminal Procedure Ordinance, Cap.221.  The principles were affirmed and elaborated by the Court of Final Appeal in HKSAR v. Tong Cun Lin [2000] 1 HKLR 113, HKSAR v. Tsang Wai Ping (2005) 8 HKCFAR 80 and HKSAR v. Hui Yui Sang, FACC No.10 of 2005.

11.The three Court of Final Appeal cases dealt with section 5 of Cap.492 which was a similar provision to the repealed section 73A.  Section 3 is, in turn, a similar provision to section 5 of Cap.492.  Guidance can therefore be obtained from these cases.

12.I do not think it necessary to reiterate the well known passage delivered by Litton PJ in Tong Cun Lin regarding the governing principles.  For the purpose of this hearing, I would just repeat what Patrick Chan PJhad said in Hui Yui Sang.  When Chan PJ gave judgment of the Court of Final Appeal, he reiterated the general rule that 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 had brought suspicion upon himself. 

13.The learned judge made a distinction between the prosecution having reasons to lay a charge against the defendant and the defendant bringing suspicion upon himself.  He said :

“… 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 the appellant’s conduct generally.”

14.Applying the stated principles, what was the appellant’s conduct?  His act of removing PW1’s luggage was found by the learned magistrate to be an honest mistake.  His explanation to PW1 when confronted was the same as his defence at trial.  There was simply nothing in the appellant’s conduct which warrants a departure from the general rule that he should be compensated with costs.

15.The respondent had very helpfully and fairly conceded that the appeal should be allowed in favour of the appellant.

16.Section 3(2) of Cap.492 provides :

“An order for costs under subsection (1) shall not exceed $30000, unless—

(a) the defendant and the prosecutor have agreed upon the terms of any order to be made by the magistrate for costs exceeding that sum; or

(b) the magistrate, in the absence of any such agreement, orders that those costs be taxed.”

17.Bearing in mind that the appellant is a foreign national who had to spend time and money to stay in Hong Kong, it is quite clear that his costs would exceed the ceiling of $30,000.  That being the case, I would allow the appeal and order that costs to be taxed if not agreed.  Costs of the appeal are also to the appellant, to be taxed if not agreed.

Mr Tam Yiu Ho, William, SGC of Department of Justice, for HKSAR

Mr Francis Burkett, instructed by Messrs Vidler & Co., for the Appellant