HKSAR v. Au Man Kin and Another

HCMA1099&1101/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 1099 AND 1101 OF 2007

(ON APPEAL FROM KTS 4531—4533AND KCCC 3591 OF 2007)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 13 February 2008

Date of Judgment : 13 February 2008

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J U D G M E N T

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1.The appellants, who were the original 1^st and 3^rd defendants, now renamed the 1^st and 2^nd appellants, were acquitted of various summons alleging false trade descriptions but were denied costs.  They now appeal against the order so denying them.

2.The 1^st appellant was the business development manager of the 2^nd appellant which carried on business at various locations referred to in the charges under the name of “the Princess Club”.  The case against them below was that they were in possession of the goods trade descriptions of which was the same as or similar to an already registered trademark.

3.It was not disputed that the appellants were in possession of such goods.  The 1^st appellant’s evidence at the trial led the magistrate “to decide on a number of matters in favour of the defence” :

“

... the non-PPIL goods all along had a consistent theme and outlook.  Various marketing methods were used to promote the non-PPIL goods including spending money on advertisements.  There were also promotional activities.  The non-PPIL goods had received some media attention over a considerable span of time.  The trade description in question appeared in promotional and publicity materials.  The volume of sales of the non-PPIL goods well exceeded that of the PPIL goods over the years.  D1 had no improper motive.  The public was unlikely to be misled into believing that the non-PPIL goods were PPIL goods.  There was no misrepresentation.  D1 has established some reputation and goodwill associated with the trade description in question.  Other traders are likely to desire to use the same trade description for their goods and services.”

4.Section 3(1)(c) of the costs in Criminal Cases Ordinance gave the magistrate a discretion to award costs to an acquitted defendant.  That discretion has to be exercised judicially.

5.The Court of Final Appeal, in the case of Hui Yui Sang v. HKSAR [2006] 2 HKLRD 738, has reiterated the principle as follows :

“

… The general rule was that the court should normally award costs to an acquitted defendant unless there were positive reasons to deprive him of such costs.  One of the positive reasons was that the defendant had brought suspicion upon himself…

… In exercising his discretion, the judge must consider the conduct of the appellant generally and 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 accusation, 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…”

6.Hartman J, in HKSAR v. Li Siu Tong & Others, HCMA547/2000 elaborated on the meaning of “bringing suspicion upon oneself” :

“	… there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the Appellants behaved badly but that their conduct brought suspicion upon themselves in respect of their alleged criminal conduct…
	… What amounts to ‘relevant’ conduct will differ according to the circumstances of each and every case... the relevant conduct, generally speaking, will be the conduct of the appellants during the police investigation and at trial…”

7.The 1^st appellant said nothing in relation to his defence during the investigation process.  The magistrate was of the view that :

“	... had D1 disclosed such matters during the investigation stage there would have been time for the authorities to investigate into the same and that would probably have averted the necessity of prosecution.”

8.He refused to accept the contention that the production of certain defence exhibits to the respondent on the first day of trial would have been enough to stop the criminal prosecution altogether.  The magistrate had made it plain that it was the testimony of the 1^st appellant and not that exhibit alone, nor the solicitors’ correspondence in exhibit P72 that resulted in the appellants’ acquittal.

9.The 1^st appellant contends that it is unfair to deprive him of his legal costs whilst he exercised his rights of silence in the investigatory stage.  He also submits that due to the voluminous documents involved over a period of four years he did not believe that had he provided such to the prosecution at the investigation stage that would have averted the necessity of prosecution.

10.The respondent, however, echoed the view taken by the magistrate, whilst reiterating that these matters and documents were privy to the appellants whilst the prosecution had neither access to nor knowledge of.

11.The magistrate was right in concluding that the appellants had “brought suspicion amongst themselves”.  In refusing the costs application, the magistrate was mindful that the right of silence must be jealously guarded.  He relied on the case of Cheng Kam Kuen v. HKSAR, HCAL92/2004, where the court said :

“	28.	However, this does not mean that under no circumstances can the refusal or failure to disclose one’s defence or proffer an explanation at the investigation stage, done in the exercise of the right of silence, be taken into account by the court in considering costs following an acquittal.  The Court of Appeal in Kwok Moon-yan, supra, has said so in terms.  The Australian cases have both explained why and demonstrated in what circumstances this may be done.  Quite apart from the fact that Kwok Moon-yan as a decision of the Court of Appeal is binding on this Court, I agree with the conclusion that has been reached in these authorities…
	32.	As I said, authorities apart, ultimately this is a question of value judgment and drawing the boundary of the right of silence.  The authorities reviewed in this judgment have shown where that boundary, in the wisdom of the judges concerned, should be drawn.  For my part, I agree with the conclusion reached.
	33.	How much weight, if any, should be attached to the refusal or failure to explain or non-disclosure in a particular case is an entirely different matter.  Furthermore, as mentioned above, in the weighing process, the fact that the refusal or failure to explain was done in the exercise of the accused’s constitutional right of silence must be fully borne in mind and given due weight …
	36.	As a matter of principle, if there really was no causal connection between the refusal or failure to explain or non-disclosure (in the exercise of the right of silence) and the prosecution and/or the attendant costs in a particular case, then as presently advised, I see no justification whatsoever for taking the refusal or failure to explain or non-disclosure into account.”

12.In my view, the magistrate was right to take into account those matters as he did.  The magistrate’s decision not to exercise his discretion to award costs in favour of the appellants is correct.

13.This appeal against the decision is dismissed.

Miss Fung Mei Ki, Mickey, GC of the Department of Justice for the Respondent

The 1^st and 2^nd Appellants, in person