HKSAR v. Wong Tak Ki

HCMA1030/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1030 OF 2006

(ON APPEAL FROM KCCC 2287/2006)

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BETWEEN

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Before:  The Hon McMahon J in Court

Date of Hearing:  22 May 2007

Date of Ruling:   22 May 2007

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R U L I N G

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1.The Appellant had appeared before me in appealing his conviction in the Magistracy. That conviction was set aside by me on 12 February of this year.  He returns to court today seeking costs of the Magistracy trial.  He seeks no other costs as he was legally aided in respect of the matter before me.  So far as the Magistracy trial was concerned, Miss Leung, for the Department of Justice, opposes any award of costs on the basis that the evidence against the Appellant at trial was overwhelming. 

2.The fundamental basis of my ruling setting aside his conviction was that there was an unresolved issue before the Magistrate, namely, the period of time the Appellant was kept in custody in a back laneway nearby the scene of his arrest.  That period of time was 65 minutes.  There was no evidence as to why it was necessary to hold the Appellant, a young boy, for that 65 minutes.  That was an issue which should have been resolved at trial.  If it had been resolved, it would potentially have cast doubt upon the findings of fact and it was for that reason that the appeal was allowed.

3.In my view, the Appellant has done nothing to bring suspicion upon himself.  The prosecution cannot rely upon the police evidence in terms of any finding of drugs upon the Appellant to justify the disallowance of costs, for the simple reason that the unresolved issue concerning the 65 minutes that the Appellant spent in custody in that rear laneway, if resolved, may well have thrown doubt upon the findings of fact in that regard.

4.In my view, costs must follow the event in respect of this matter and I award the Appellant the costs of his trial in the Magistracy Court.

(Submissions re costs)

5.Costs of today as well to the Appellant.

Ms Rosaline S.Y. Leung, SGC of the Department of Justice, for the Respondent

Mr Giles Surman, instructed by Messrs Ellen Au & Co., assigned by DLA, for the Appellant