HKSAR v. Leung Kwok Wai

HCMA 622/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 622 OF 2012

(ON APPEAL FROM STCC 1749 OF 2012)

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J U D G M E N T

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1.This is an appeal against an order refusing a successful defendant his costs following a trial in the Magistrates Court. 

2.There is no need to dwell on the facts which can be summarised very briefly by merely saying that there was an allegation that this defendant had been part of a group that went into a village house and caused criminal damage and grievous bodily harm to one of the occupants. 

3.A group of men were said to have been involved and the two occupants testified that this defendant was one of them. There were shortcomings in their evidence, but not only that, the defendant was able to demonstrate at trial that he had been coming through the border at Lo Wu at a particular time which made it difficult for him to get to the scene of the alleged crime.  Also, he called a witness to say that he had been seen coming back to the vicinity of the crime after its commission.  The time of the crime was fixed by reference to the last race that was occurring at Shatin on that day.  In those circumstances, the Magistrate had a reasonable doubt and acquitted him.

4.An application was made for costs and it was denied.  It seemed to be denied on the basis that he had made the prosecution think the case was stronger against him because he had said nothing after caution and had not revealed his alibi, although he had ample opportunity to do so if he had chosen to do so.

5.Of course, alibi notices have to be served in the District Courts and in the Court of First Instance, but the Magistrates Court is excluded from that provision and, obviously, as we all know, when a man is arrested,

as this defendant was, he is told he need not say anything; and he exercised what we call his right to silence in this case.

6.In my judgment this is an appeal that has to be allowed. 

7.The Ordinance gives me a discretion and I have plenty of guidance from the Court of Final Appeal upon how that should be exercised.  To put it in a nutshell, to deprive a man of his costs in these circumstances, it needs to be demonstrated that he did something that would make it right to deprive him of them.  It cannot be the case that if you exercise the rights that the law gives you, that of itself can be sufficient to deprive a man of his rights.  He is entitled to remain silent.  He is told that and if he does that one cannot then turn around at the end of the day and say, “I am going to deprive you of the costs of defending the case.”

8.So I shall allow this appeal.  I shall make an order that the defendant have his costs here and below to be taxed if not agreed and that order is made under section 3 the Costs in Criminal Cases Ordinance.

9.I have given this extempore judgment and it does no more than deal with the facts of this particular case.  I was treated to a very long written submission which displayed great industry by the respondent, who took me on a world tour around Canada, Australia and the like, and told me what happened in England long ago, but all I need to apply in this case is the Ordinance which gives me the discretion and the guidance from the Court of Final Appeal.  If a man does no more than exercise the right he is given, that of itself would not persuade me to exercise my discretion against him when it comes to costs.

Mr Cliff Ip Wai Kee, Public Prosecutor of the Department of Justice, for the respondent

Mr Raymond Yu, instructed by Louis K Y Pau & Co, for the appellant