HKSAR v. Lam Chiu Fong and Others

CACC 71/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 71 OF 2008

(ON APPEAL FROM HCMA 1148/2007)

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock JA and Beeson J in Court

Date of Hearing: 24 September 2008

Date of Judgment: 9 February 2009

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J U D G M E N T

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Hon Stuart-Moore VP and Beeson J:

1.This is an appeal by the Secretary for Justice (the appellant) against an award of costs made on 31 January 2008 in favour of the four respondents (D1, D5, D6 and D7 respectively) by Deputy High Court Judge Line, pursuant to Section 19 of the Costs in Criminal Cases Ordinance, Cap. 492.

Background

2.The respondents, with six other men, were jointly charged with taking part in an unlawful assembly, contrary to Section 18(3) of the Public Order Ordinance, Cap. 245.  All were arrested on 14 September 2007 and appeared in the Kwun Tong Magistracy (KTCC 5896/2007) on 17 September 2007.

3.On 12 October 2007, the prosecution withdrew the charge against the respondents and, on 5 November 2007, they applied unsuccessfully for costs before Acting Principal Magistrate A Woodcock.  The respondents appealed to the Court of First Instance (HCMA 1148/2007) against the refusal of their application.

4.On 31 January 2008, the judgeallowed the respondents’ appeal and awarded them the costs of their appeal and the costs incurred in the Magistrates’ Court.

Facts

5.The charge against the respondents resulted from the owner of a decoration company, Mr X (PW1) being hindered by what appeared to be triad bullies when he was distributing leaflets to promote his decoration business at a new estate in Wong Tai Sin (the estate).  On the first occasion he began to distribute leaflets at the estate, about forty men arrived almost immediately.  One of the men used threatening words which scared him and made him believe that he would be beaten up.  Consequently, PW1 made a report to the police who then mounted an operation to investigate the matter.

6.On 7 September 2007, a police officer (PW2) acted as a decoy to distribute leaflets with PW1 at the estate and two police officers (PW3 and PW4) kept observation from a nearby building.  Between 2.20 pm and 3.00 pm, PW1 and PW2 were approached on three separate occasions, each time by three men who uttered threatening words.  In one instance, the name of a triad society was invoked.

7.On 14 September 2007, PW1 and PW2 again distributed leaflets on the estate, while PW3 and PW4 carried out the observation.  Between 11.35 am and 11.50 am, PW1 and PW2 were approached by men who swore at them and threatened to beat them.  At about 1.00 pm, two more police officers (PW5 and PW6) posed as decoration workers and joined PW1 and PW2 for lunch at a restaurant.  Two men turned up at the restaurant and made threats and claimed triad membership.

8.At around 3.30 pm, PW1, PW2, PW5 and PW6 (the group) were distributing leaflets at the main entrance of the shopping arcade on the estate when seven men turned up and surrounded them.  Three of the men uttered threatening words and the rest either scolded the group with foul language or stared at them angrily.

9.At 4.11 pm, ten men arrived at the entrance of the shopping arcade and surrounded the group.  One man uttered threatening words, claiming his group belonged to a particular triad society, while the other men directed foul language at them.  Some of the men, D1 to D7 in the court below, then went to a restaurant nearby and D8, D9 and D10 went elsewhere in the estate.  D1 to D7 were arrested inside the restaurant, after PW2, PW5 and PW6 had pointed out each of them as having been amongst those who had surrounded them and sworn at them.

10.The magistrate set out the history of the case in her statement of findings in which she stated that the ten defendants had been arrested on 14 September 2007.  They were charged with taking part in an unlawful assembly and, on 17 September 2007, the case was adjourned for further enquiries and to enable identification parades to take place.  On 21 September 2007, the case was adjourned to 12 October 2007 when two of the respondents were granted bail and two were remanded in custody.  On 12 October 2007, the charge against the respondents was withdrawn after others in the group had pleaded guilty to triad-related charges and criminal intimidation.

11.The magistrate looked at the established principles governing an award of costs under Section 3 of the Costs in Criminal Cases Ordinance, Cap. 492, which provides: 

“3.  Defence costs in summary proceedings

(1)  Where –

(a)  an information or complaint laid before a magistrate is not proceeded with;

(b)  a magistrate inquiring into an indictable offence determines not to commit the defendant for trial;

(c)  a magistrate dealing with a summary offence or any offence summarily dismisses the information or complaint or acquits the defendant; or

(d)  a magistrate, under section 104 of the Magistrates Ordinance (Cap. 227) –

(i)  on the application of the defendant or on his own initiative reviews his decision, and on that review reverses or varies his decision; or

(ii)  on the application of the prosecutor reviews his decision, and on that review confirms his decision,

the magistrate may order that costs be awarded to the defendant.”

The magistrate referred to Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, where the principles applicable to the proper exercise of the discretion to grant costs are discussed.  As Litton PJ said at 535H:

“The person in the best position to weigh those matters is clearly the judge himself.”

12.The magistrate noted that, as a general rule, the court should normally award costs to an acquitted defendant unless he has brought suspicion on himself.  The respondents had not been acquitted but, as the charge against them had been withdrawn, they found themselves in a similar position.  The magistrate found that there had been more than sufficient evidence to justify the police arresting and detaining the respondents. 

13.The magistrate commented in her statement of findings:

“The appellants were an integral, active part of the gang and not innocent bystanders. I was sure they were not just merely present at the scene. These four men put themselves in a position where they were arrested as part of a gang that surrounded and intimidated the victims.  They brought suspicion upon themselves and should bear their own costs.”

14.The respondents appealed, submitting that the magistrate had wrongly exercised her discretion when refusing costs.  It was argued that the decision of the prosecution to withdraw the charge against the respondents did not arise from any procedural irregularity or a mere technicality and, in the circumstances, there were no positive reasons for not awarding the respondents their costs.  Mr Stirling, who also appeared for the respondents in the court below, submitted that they had suffered grave injustice by the refusal.

15.Judge Line, having heard the appeal, sought to follow the Court of Final Appeal’s decision in Qamar Sheraz v HKSAR FACC 5/2007, which, as he pointed out, stated that it was not permissible to deny an acquitted defendant his costs on the sole basis that the facts established that he was guilty of the crime charged.  The judge went on to say:

“The same evidence could not trouble the defendant twice in respect of costs and the presumption of innocence was engaged.”

16.The reasons for the decision in Qamar’s case were handed down on 30 November 2007, about a month after the magistrate had given her ruling, so that the judgment was not available for her consideration.  The Court in Qamar asked the question:

“Is it ever open to an appellate court to deprive an acquitted defendant of costs by holding that he ought to have been convicted?”

and answered it “No”.  Ironically, it was Judge Line who had dismissed Qamar’s appeal against the refusal of his costs by a magistrate on the basis that he ought to have been convicted by the magistrate.

17.Turning then to the instant case, when the judge sought to apply Qamar, he stated that the four respondents enjoyed the presumption of innocence and that the facts which founded the charge against them could not be taken as an indication of their guilt.  The wrong of which they were accused could not by itself be used as the foundation for denying them their costs.  This was the more so where the prosecution had withdrawn the charge and the assertion of wrongdoing was untested, as opposed to a situation where there had been a trial and basic facts had been found.  The judge continued (see: HCMA 1148/2007):

“6.  No fact or matter exists in this case beyond the facts upon which the charge of unlawful assembly was based which could be said to justify the finding that an appellant's conduct brought suspicion upon himself.  If what they had done had led to a trial and acquittal, their conduct could not have been taken against them in order to deprive them of their costs.  The same must therefore apply where the prosecution do not proceed to trial but withdraw the charge.  In both situations, the presumption of innocence is engaged.

7.  Put another way, the conduct of an appellant which is said to have brought suspicion upon himself has to be something outside the ambit of that which attracts the presumption of innocence.”

18.The judge allowed the appeal on the basis that the conduct, identified by the magistrate as having attracted suspicion, was either the commission of the crime charged or something falling just short of it.

19.The Court of Final Appeal in Qamar (para 12), when allowing the appeal against the judge’s order in that case to deprive the acquitted defendant of his costs, stated that it was neither concerned with the merits of the magistrate’s reasons for acquittal nor with the judge’s reasons for holding that the appellant ought to have been convicted.  The court stated:

“15.  Unlike juries, magistrates (and District Court judges) give reasons. So where the acquittal is by a magistrate (or a District Judge), it would generally be possible for the appellate court to see whether any finding could conflict with the view taken by the trial court in acquitting.  But that is limited to enabling the appellate court to see how far it can go in forming a view of the facts without going against the acquittal.  It does not empower an appellate court to go against an acquittal.  Rather does it underline the impermissibility of anything of the kind”.

20.In Hussain v. United Kingdom [2006] 43 E.H.R.R.22, 437 the European Court of Human Rights considered a case similar to Qamar, in relation to Art. 6(2) ECHR which is equivalent to Art. 11 (1) of the Hong Kong Bill of Rights Ordinance, Cap. 383.  There, a trial was aborted when a key witness, from fear, had not wished to give evidence and the prosecution offered no evidence rather than compel her to do so.  After the defendant had been formally acquitted, he applied for costs.  The judge refused the application because there had been compelling evidence on the papers against him.

21.The court (at p. 441) referred to the presumption of innocence, one of the elements of a fair criminal trial required by Art. 6(1) as:

“…being violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty unless he has been proved so according to law.  It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards that person as guilty.  Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made.  The provision applies even where the substantive criminal proceedings have ended, provided that there is a sufficient nexus between the criminal proceedings and the events at issue.  In such circumstances, the question is whether the trial judge relied on suspicions as to the applicant’s innocence after the applicant had been acquitted.”

Discussion

22.Mr Leung, on behalf of the appellant, submitted that the court, in considering whether a defendant has brought suspicion on himself, was entitled to take into account all conduct, whether before or during the investigation and trial stages, as long as it was relevant to the charge.  He submitted that the judge’s reliance on Qamar was misplaced, as all that that decision confirmed was that a judge may not rely on a version of facts or events which is inconsistent with the acquittal or take a view of the facts which is significantly different from the underlying reasons for the acquittal.  He had to look generally at a defendant’s conduct to see if it was relevant to the charges he faced.

23.Tong Cun Lin (above), in summary, confirms that a judge, exercising the discretion in regard to costs, must look at the relevant conduct of a defendant so long as that conduct is relevant to the charges he faced.  In that case, the conduct most relevant was the appellant’s conduct during the investigation and at trial although this will not always be so.  This will depend on the facts of each case.  The strength of the case and the circumstances in which a defendant comes to be acquitted are also relevant to the exercise of the discretion.  Litton PJ (at 535 G-H) said:

“… it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc.  Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict.”

24.Mr Leung submitted in a 2^nd ground that the judge had failed to consider the evidence available against the respondents in deciding whether to deprive them of their costs.  Although, strictly, no evidence was adduced because the charge had been withdrawn, it was wrong to suggest that the magistrate could not rely on the brief facts, or accept an outline of the facts put forward by the prosecution which the defence did not challenge.  To say otherwise would mean, he submitted, that in every case where the prosecution offered no evidence, costs would, of necessity, have to be awarded to the defendant and this would plainly conflict with the express wording of Section 3(1)(a) of the costs in Criminal Cases Ordinance which confers a discretion on the court and envisages a situation where costs can be refused.  Section 3(1)(a) provides, so far as it is relevant, that where “an information or complaint laid before a magistrate is not proceeded with”, the magistrate who summarily dismisses the information or complaint or acquits the defendant “may order that costs be awarded to the defendant”.

25.In considering whether a defendant’s conduct has brought suspicion on himself, the task of the magistrate or judge is likely to be easier in those instances where evidence has been called and tested in court, rather than where charges have been withdrawn.  Mr Stirling, on behalf of the respondents, submitted that no exercise of the discretion should be made in the latter circumstances without evidence being called from witnesses, when the refusal to grant an order for costs is based on evidence which might have given if there had been a trial.

26.In this regard, the case of Mooney v Cardiff Magistrates’ Court 164 JP 220, to which we were referred by Mr Leung, gives some guidance.  The appellant faced a charge of assault occasioning bodily harm.  Subsequently his wife, the alleged victim of the assault, provided a statement that she did not wish to pursue the charge.  The justices decided that the appellant had brought the proceedings on himself and refused his application for costs.

27.On appeal it was held that the justices did not have to hear oral evidence on an application for a costs order; they could decide on the basis of a statement of facts provided by the prosecution.  However, in Mooney, the mere assertion that an allegation had been made and withdrawn was not sufficient to allow the conclusion to be drawn that the appellant had brought the proceedings on himself.  There had to be independent evidence to support the truth of the allegations, such as medical evidence or an admission by the defendant.  Tuckey LJ said:

“In making decisions about costs it is obviously unnecessary for justices to have to hear evidence in a case which has been discontinued and so no question of oral evidence arises.  In an appropriate case justices may come to a decision such as this on the basis of what they are told by the prosecutor. The only point in this case is whether, on what they were told here, any such conclusion was justified.

As Mr Hill-Smith [counsel for the appellant] accepts, one obvious reason why the victim may have made what is called a ‘withdrawal statement’ in this case was that, although the allegation was true, when she realized the consequence of what she had alleged and in the interests of reconciliation with her husband, she decided to withdraw it. In such a case, the justices would be perfectly entitled to reach the conclusion which they did in this case.

There are, however, other reasons, as Mr Hill-Smith points out. The withdrawal may have been made because the wife had made a false allegation and was not prepared to go ahead with it and perjure herself in court. It could also be that the allegation was much exaggerated and so she chose to withdraw it for that reason. Indeed, (and this becomes more controversial) she might have been assaulted by her husband but, when the full facts were investigated, it would emerge that he did so in self-defence.

These are all possibilities. They show that it is not possible for the justices to conclude that a defendant in a case such as this has brought the proceedings on himself simply because the complainant has withdrawn the allegation.”

In order to reach a conclusion of this kind, the justices have, it seems to me, to do more than they did here.  They would of course listen to the prosecutor but they would be looking for some indication from him that there was independent evidence to support the allegation which had been made by the wife: for example, that the police were called or neighbours had come on the scene and found her in a certain state or that there was medical evidence to the effect that she had been injured. In this case, one does suspect there must have been some evidence to support an injury, otherwise a charge of assault occasioning actual bodily harm could not have been laid.  Furthermore, and importantly, the justices would be looking to see (and asking the prosecutor, if he was not supplying this information to them of his own accord) whether the defendant had made any admissions, because if that were the case then that would be the plainest possible material upon which they could act in order to reach a conclusion that he had brought the proceedings on himself.” [Emphasis added]

28.Mooney does not say that evidence is not relevant or that it is never required; that will depend on the individual case.  However, it is not desirable that court lists be clogged, unnecessarily, with evidential enquiries springing from costs applications.  This accords with the principle stated by Litton PJ in Tong Cun Lin (at 537B-C) with reference to section 73A(1) of the Criminal Procedure Ordinance, Cap. 221, for an order that costs be paid out of public revenue:

“An application for an order for costs under s. 73A(l) is a summary process, brought before the very judge who had presided over the whole case, and is not amenable to much elaboration and argument.  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.”

29.The prosecution in the instant case had outlined to the magistrate the basis of the respondents’ conduct in bringing suspicion on themselves and this had not been challenged by defence counsel.

30.With all of these matters in mind, Mr Leung submitted that appellate courts have always been slow to interfere with the exercise of discretion by lower court judges and have generally only done so when a judge has taken into account a factor which was not relevant to the exercise of his powers.  In Tong Cun Lin, for example, Litton PJ noted this wide discretion when commenting (at 537C) that:

“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.”

31.In HKSAR v Dove and Another [1998] 1 HKLRD 179, Yeung J said (at 181G):

“The issue is not whether this court would have exercised the discretion in favour or against the appellants.  Sitting in an appellate capacity, the only issue that I have to decide is whether there was evidence before the magistrate for him to conclude that the appellants had, in fact, brought suspicion upon themselves, and/or misled the prosecution into thinking that the case against them is stronger than it is.  In my view there is clear evidence pointing to that aspect, and the learned magistrate was entitled to take those matters into consideration.”

32.About a month after the decision in Qamar, the Court of Final Appeal upheld in Ting James Henry v. HKSAR FACC 4 of 2007 a refusal by the Court of Appeal to award costs to an acquitted defendant.  That defendant had succeeded in having his conviction overturned on the basis of a misdirection by the trial judge.  However the Court of Final Appeal agreed with the basis for the Court of Appeal’s refusal of costs, namely, that the issue of dishonesty, which had been left to the jury and which the jury clearly had found proved, was separate and distinct from the misdirection.  The misdirection was not inconsistent with the finding of dishonesty so that the Court of Appeal was not taking a view of the facts “palpably different from that taken by the jury”.  Nor did the refusal of costs contravene the presumption of innocence.  Although Ting had been found not guilty, this did not mean he had not been dishonest as alleged by the prosecution.  In the course of that judgment, Li CJ stated:

“16.  It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs.  Such conduct has been described as ‘most relevant’ to the discretionary exercise.  However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise.  The discretion is not bounded by any such inflexible rule.  By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself.  There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”  [Emphasis supplied]

33.In the present case, Mr Leung argued that the respondents had brought suspicion on themselves.  There had been two incidents on 14 September 2007, one at 3.30 pm and the other at 4.11 pm, when PW1 and the decoy officers were surrounded and sworn at by the respondents and others.  Some in the group of aggressors went to a nearby restaurant and were arrested there about two minutes later.

34.Before the magistrate refused the costs application, she heard submissions from counsel for the respondents.  Prosecuting counsel informed the court that the respondents had been identified by the police decoy witnesses as having taken part in swearing at them on 14 September 2007, whilst others in their group had threatened to harm those distributing leaflets.  PW1 had identified D6 and D7 at an identification parade as having been present in the group intimidating him.  In addition, D7 had admitted in interview having been asked by a man nicknamed ‘Tai Shong’ to assist him by threatening persons who were encroaching on his area for the purpose of distributing leaflets.  D7 used the word ‘hong’ which he confirmed meant ‘to scare’.

35.This information was contrary to Mr Stirling’s initial submissions to the magistrate that his clients had neither been identified nor made statements against interest.  He claimed his clients had been bystanders only and that there had been no suggestion they had done anything other than be physically present.  Significantly, after Mr Stirling had been informed of the identifications and about D7’s statement, there was no suggestion from him that an evidential enquiry should be held to challenge those matters.  Clearly, by their presence at the scene simpliciter, the respondents could be regarded as taking part in what was well-understood by all those at the scene, and by the magistrate, as a triad show of force; a choreographed, intimidatory exercise, with a view to protecting territory which, wholly unjustifiably, they considered theirs.

36.The respondents were identified as having taken an active part by surrounding the group of PW1 and the police officers.  In our view, their conduct, as described in Ting’s case, formed part of the setting for the charge laid against them.  As such the magistrate was entitled to take it into account.

37.Here, there was unchallenged material available to the court which powerfully illustrated why the respondents had been arrested and charged.  In our view, the refusal of costs does not contravene the presumption of innocence and the magistrate was entitled, in the proper exercise of her discretion, to refuse costs. 

38.We would, therefore, allow this appeal and, by quashing the judge’s order for costs, uphold the magistrate’s decision to refuse an order for costs in favour of the respondents.

Hon Stock JA:

39.My initial inclination was to agree with Judge Line’s decision because it seemed to me – as indeed it still does – that the magistrate refused costs on the basis that the respondents were in fact guilty of the offence with which they had been charged and which was withdrawn.  She said in the concluding paragraph of a statement of findings:

“The [respondents] were an integral, active part of the gang and not innocent bystanders.  I was sure they were not just merely present at the scene.  These four men put themselves in the position where they were arrested as part of a gang that surrounded and intimidated the victims.  They brought suspicion upon themselves and should bear their own costs.”

40.The charge which was withdrawn was one of unlawful assembly, contrary to s. 18 of the Public Order Ordinance, an offence that is constituted when three or more persons assemble together and conduct themselves in a disorderly intimidating insulting or provocative manner intended or likely to cause any person reason to fear that the persons so assembled will commit a breach of the peace.

41.On the face of it, therefore, the magistrate was doing the very thing that the cases seem to prohibit, which is to assume guilt where guilt had not been proved.

42.It seems to me that in cases where charges are withdrawn, the starting consideration is the same as that established by the authorities, to which Stuart-Moore VP and Beeson J have referred above, where there has been an acquittal, namely, that there should be an award of costs in favour of the person charged unless there is positive reason for making a different order.  Where the essential facts are realistically in dispute, and the person charged has not by his conduct brought suspicion on himself or led the investigating authorities to believe that the case against him was stronger than in fact it was, then when a charge is withdrawn the costs discretion ought to be exercised in favour of that person.

43.But this is not a mechanical process.  It will always be highly case-sensitive as to the facts and the submissions made before the tribunal.  There is a difference between cases that have been prosecuted to a conclusion, where findings of fact have been made, and a case where a charge is withdrawn.  In both instances the presumption of innocence applies and the starting consideration on the question of costs is the same.  But in a case such as the present, where charges are withdrawn, no findings of fact are made and it would be unrealistic and undesirable to expect the tribunal faced with a costs application to conduct a trial merely for the determination of that issue.  The matter must therefore be approached with common sense.

44.Most particularly, it will be important for the court to know the reasons for withdrawing the charge, what the proposed evidence was, the apparent strength of that evidence, including the question whether there was evidence from a clearly independent source to support the complaint and, importantly, what undisputed indicia there are as to the charged person’s conduct in the setting of the factual circumstances giving rise to the alleged offence and in the investigation of them.

45.For example, where allegations put by the police to a suspect are met with silence in the face of undisputed conduct which on an objective view appears culpable, a denial of culpability for the first time when the charge is withdrawn and the matter comes before a magistrate for determination as to costs will be a positive reason for not awarding the suspect his costs.

46.Another example is the one provided by the facts of Mooney to which Stuart-Moore VP and Beeson J have referred above.  That was a case in which the withdrawal of the charge was triggered not by a lack of cogent evidence but by circumstances that are common in domestic disputes, namely, the withdrawal of a complaint by an aggrieved spouse who would not give evidence but where there was evidence, on its face reliable and wholly independent of that of the complainant, that supported the charge.  In other words, there was more than a “mere assertion that the allegation had been made and withdrawn”: per Tuckey LJ in Mooney.

47.Whilst I have some misgivings about the basis upon which the magistrate expressed her determination, I take the view that there were positive reasons for denying these respondents their costs.  None of the respondents denied the fact of the intimidation of the complainant.  None denied their presence at the scene and at the time of that intimidation.  At the costs hearing Mr Stirling was obviously under a misapprehension about the nature of the evidence against them.  For example, he said that there had been no identification; yet there had been, including identification by the police, who were not the complainants and after that was pointed out, he did not dispute that suggestion nor offer any explanation for the respondents’ presence at the time and place of the intimidation, or for the fact that they adjourned with the others (the ones who pleaded guilty) to a restaurant where all were arrested.

48.He submitted that none had made any admissions, but when it was pointed out that D7 had admitted culpable conduct, namely, that he had been called to attend the scene to intimidate, that was not disputed.  All that Mr Stirling then did was to suggest that since those matters were not in the summary of facts, they should not be relied upon, a submission that was with respect, untenable.  As for what D7 had said, Mr Stirling’s contention was that that did not mean that D7 had carried out intimidation he had been asked to perform.  There was no suggestion that D7 had not made the inculpatory remarks.

49.What, therefore, the magistrate was faced with were allegations supported by evidence independent of that of the complainant, allegations, once explained to the magistrate, that were not disputed in the submissions made by counsel on their behalf and, in the case of one of the respondents, a statement admitting culpable conduct, the making of which statement was not denied.  There was no concession by the prosecution that the charges were not pursued because of a lack of evidence but, rather, an explanation, according to the statement of findings, that there had been a policy decision to proceed only against those who claimed to be triads and had “actually intimidated” the complainant.

50.In the particular circumstances thus described - and I must emphasise that the result must turn on a combination of all these circumstances and, importantly, on what was not, in the event, denied - an award of costs would, I have concluded, have sat ill with the justice of the matter. For these reasons, therefore, I too would allow the appeal.

51.In Ting James Henry at para 16, the Court of Final Appeal pointed out that it was incorrect to suggest that a defendant could only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise; and that such inculpatory conduct might be conduct that “formed part of the setting for the charges laid against him”.  There has, I understand, been some difficulty in the application of the last segment of the principle there stated, for the question arises how to marry that principle with the notion that an acquitted person should not, for the purpose of a costs application, be treated as someone who ought to have been convicted.  There is no inconsistency.  Ting itself is an example of an acquittal that was not inconsistent with a finding of dishonesty on the part of the appellant.  The present case provides another example, namely, that of D7 and his confession and avoidance – a confession to culpable conduct closely linked to the charge though, according to counsel, avoiding the commission of the actual offence charged.

52.Accordingly, I would allow this appeal and quash the order for costs made by Deputy High Court Judge Line on 31 January 2008.

Hon Stuart-Moore VP:

53.The Court unanimously allows the appeal and the order for costs made by the judge in favour of each of the respondents is quashed.

Mr David Leung, SPP, of the Department of Justice, for the Appellant

Mr W Niall Stirling, instructed by Messrs Jesse H Y Kwok & Co, for the Respondents (D1, D5, D6 and D7)