Lai Kwok Fai v. Hong Kong Special Administrative Region

FACC No. 3 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2012 (CRIMINAL)

(ON APPEAL FROM HCCC NO. 341 OF 2010)

_____________________

Between:

J U D G M E N T

Chief Justice Ma :

1.The present appeal (involving the refusal to award costs in a criminal trial) falls to be disposed of under the procedure laid down by this Court in Mok Kin Kau v HKSAR (2008) 11 HKCFAR 1.  This procedure is appropriate where an appeal is uncontested, and where the parties and the Court are of the view that the appeal can be disposed of without going to the expense and trouble of an oral hearing.

2.On 21 July 2011, Beeson J acceded to the submission by the appellant (who was the third defendant in the trial before her) that he had no case to answer on a charge of arson (contrary to ss 60(2) and (3) of the Crimes Ordinance Cap 200).  In a nutshell, the Judge was not satisfied that the identification evidence produced by the prosecution against the appellant (which was the only evidence against him) was sufficient to be put before the jury; in other words, it would not have been safe for this evidence to be left to the jury.  However, the learned judge refused to award costs to the appellant.

3.In her judgment giving the reasons for refusing the application for costs (given on the same day), the Judge said this:-

“In relation to the costs sought by the defendant I was of the view that there had been sufficient evidence to justify charging the defendant and refused the application.”

4.As the Joint Case filed by both the appellant and the respondent submits, the sufficiency or otherwise of the evidence to justify charging a person is not in itself a reason to deprive a successful defendant of his costs.  As this Court has stated in Hui Yui Sang  v HKSAR (2006) 9 HKCFAR 308, at 314H-J (para 13), following Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, in exercising a discretion as to costs following an acquittal, the Court’s focus, if it is suggested that a defendant should be deprived of the usual order following an acquittal (that is, that the defendant should have his costs of defending the charge), is primarily on the defendant’s conduct seen against the relevant circumstances, including the evidence against him.  The matter was put in the following way in the judgment of Litton PJ in Tong Cun Lin at 535D-H:-

“What then are the governing principles? When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – 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. The person in the best position to weigh those matters is clearly the judge himself.”

5.In the present case, I am satisfied that the Judge erred merely by referring to the sufficiency of the evidence in the charge against the appellant.  Nothing was said about the conduct of the appellant, whether before or during the trial.  There was no basis accordingly to deprive him of his costs.

6.For these reasons, I would allow the appeal and order that the costs of the trial before Beeson J be paid to the appellant by the respondent.  The appellant should also have his costs of this appeal.  All costs are to be taxed, if not agreed.

Mr Justice Bokhary PJ:

7.I agree with the Judgment of the Chief Justice.

Mr Justice Chan PJ:

8.I agree with the Judgment of the Chief Justice.

Mr Justice Ribeiro PJ:

9.I agree with the Judgment of the Chief Justice.

Lord Neuberger of Abbotsbury NPJ:

10.I agree with the Judgment of the Chief Justice.

Chief Justice Ma:

11.The appeal is accordingly allowed.  It is ordered that the costs of the trial before Beeson J be paid to the appellant by the respondent, and that the appellant should have his costs of this appeal, all such costs to be taxed, if not agreed.

Written materials supplied by Mr Peter Chow (instructed by Messrs C K Mok & Co) for the appellant and by Mr David Leung and Ms Sabra Lo (of the Department of Justice) for the respondent