Final Appeal No 5/2007 (criminal)

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COURT OF FINAL APPEAL, HKSAR

Coram

Qamar Sheraz

- vs -

Hong Kong SAR

CHIEF JUSTICE ANDREW LI

JUSTICE KEMAL BOKHARY PJ

JUSTICE PATRICK CHAN PJ

JUSTICE R.A.V. RIBEIRO PJ

JUSTICE HENRY LITTON NPJ

30 NOVEMBER 2007


Reasons

Chief Justice Li

  1. At the conclusion of the hearing [on 26 November 2007], we announced that this appeal was allowed with costs in both courts below and with disbursements incurred in applying for leave to bring this appeal and in bringing it.  We said that our reasons would be handed down later.  They are now given by Mr Justice Bokhary PJ and Mr Justice Chan PJ in their joint judgment for the Court.

    Justice Bokhary PJ and Justice Chan PJ

  2. Question of fundamental principle

  3. Is it ever open to an appellate court to deprive an acquitted defendant of costs by holding that he ought to have been convicted?  If there are circumstances in which such an exercise can be performed, what are such circumstances?  Do they exist in the present case?  If they do, what is the proper procedure to be followed in the performance of such an exercise?  And was it followed in the present case?  Of course, none of the last four questions would arise if the answer to the first question, which is one of fundamental principle, is “No”.  Upon such an answer, this appeal must succeed, for the facts are as follows.

  4. Facts

  5. This appellant stood trial before a magistrate (Peter Hui, Esq.) in a juvenile court on a charge of theft.  The victim was a young woman who gave evidence as the first prosecution witness.  She was talking on her mobile telephone while walking along the street.  A youth snatched her telephone and ran off with it.  She pursued him.  The pursuit was observed by a man from his home on the sixth floor.  This man gave evidence as the second prosecution witness.  About 15 minutes later in a nearby park, he saw the appellant.  Believing that the appellant was or might be the thief, he apprehended him with the assistance of another man.  This other man, who happened to be passing by with his wife, gave evidence as the third prosecution witness.

  6. Following his apprehension by those two men, the appellant was arrested by a police officer.  This officer gave evidence as the fourth prosecution witness.  He said that he found two mobile telephones in the appellant’s pocket : one of dark colour with a bunch of keys attached to it and the other of silver colour.  This silver coloured telephone was  subsequently identified by the victim as hers.  The officer also said that the appellant had responded to the caution by saying “Ah Sir, I snatched the woman’s mobile phone for my own use out of momentary greed.”

  7. Exercising his right to silence, the appellant did not give evidence.  But the defence disputed that the appellant had made any admission.  And the magistrate was of course right in recognising that it was for the prosecution to prove beyond reasonable doubt that the admission had indeed been made.  The defence did not accept that the appellant was in possession of any telephone other than his own dark coloured one with a bunch of keys attached to it.  And the magistrate was of course right in recognising that it was for the prosecution to prove beyond reasonable doubt that the appellant was also in possession of the victim’s silver coloured one.

  8. Magistrate acquits

  9. No witness identified the appellant as the thief.  The prosecution’s case was based on a verbal confession (which confession was disputed) and recent possession of stolen property (which possession, too, was disputed).  In giving his reasons for acquitting, the magistrate spoke of three conflicting versions given by the second, third and fourth prosecution witnesses.  Referring to those three witnesses by the abbreviations “PW2, PW3, PW4” respectively, the magistrate said :  

    There were 3 conflicting versions before me, i.e.

    (i)

    PW2 noticed the defendant was holding a silver colour mobile phone in his hand.  When the police officer came to the scene, the mobile phone was held by PW3’s wife and it was handed to the police officer.

    (ii)

    PW3 noticed the defendant was holding a dark colour mobile phone with a bunch of keys attached to it in his right hand until the police officer arrived at the scene.

    (iii)

    PW4 testified that he concluded body search on the defendant and found 2 mobile phones inside the defendant’s pocket(s).

  10. After saying that, the magistrate concluded his reasons for acquitting by saying this :

    It was my finding that all three prosecution witnesses gave clear evidence about the mobile phone(s).  None of them was unclear or unsure of what he said.  Notwithstanding the difference in colour of the mobile phone, the evidence of PW2 and PW3 could not reconcile with PW4’s evidence that he found the 2 mobile phones inside the appellant’s pocket(s). Thus, the reliability of PW4’s overall evidence including the alleged verbal admission was affected.  I could not find any reason that I should rely on PW4’s evidence and ignore the evidence given by the other 2 prosecution witnesses or vice versa when each of them appeared to be honest and credible witness.  As there was a lurking doubt in the prosecution case, the defendant was entitled to benefit from such doubt and so I found him not guilty.

    But refuses costs on the “bringing of suspicion upon oneself” ground

  11. Following the acquittal, defence counsel asked the magistrate to award the appellant costs.  This was opposed by the prosecution on the basis that the acquittal was due to the “technical incorrectness between PW2, 3 and 4” and the evidence being “not as perfect as [the magistrate] might consider that is deemed a conviction”.  This acquittal was not on a technicality.  In any case, as Mr Justice Bokhary PJ explained in Tsang Wai Ping v HKSAR (2005) 8 HKCFAR 80 at pp 89H – 90E, an acquitted defendant should not be deprived of costs on the ground that his acquittal was on a technicality if that would violate his presumption of innocence.  As it happens, nothing more need be said about the basis on which the prosecution asked the magistrate not to award the appellant costs.  This is because the magistrate did not proceed on that basis.  Instead the magistrate refused the appellant costs in effect on the ground that he had brought suspicion upon himself.

  12. Avenues for seeking the reversal of an acquittal by a magistrate.  Not pursued

  13. Without suggesting that either one ought to have been pursued in the present case, we would point out that the law provides two avenues by which the prosecution may seek the reversal of an acquittal by a magistrate.  Both are provided by the Magistrates Ordinance, Cap.227.  One is a review by the magistrate himself under s.104.  This was explained by Lord Cooke of Thorndon NPJ in Poon Chau Cheong v Secretary for Justice (2000) 3 HKCFAR 121 at p.129 G-H where he said that the procedure under s.104 :

    … is open to the prosecution as well as to the defence.  An illustration of proper resort to it by the prosecution arises when a magistrate has entered a simple acquittal (strictly speaking, in the summary jurisdiction, a dismissal of a charge) although his statutory duty was to amend the charge.

    The other avenue is an appeal to the High Court by way of case stated on a point of law under s.105.  This procedure, too, is open to the prosecution as well as to the defence.  Nothing more need be said about these two avenues since the prosecution did not pursue – and we do not suggest that it ought to have pursued – either.

  14. Quite simply, the appellant was and remains an acquitted defendant.  It was as such that he appealed to the High Court against the magistrate’s refusal to award him costs.  And it was as such that he had to be – and remains to be – treated.

  15. Judge refuses costs, holding that the appellant ought to have been convicted

  16. Plainly there is nothing in the circumstances of the present case that would justify a court in holding – as the magistrate had in effect held – that the appellant had brought suspicion upon himself.  And prior to the hearing of the appeal to the High Court, the respondent indicated that it would not resist that appeal.  But at the hearing of that appeal, which came before Deputy Judge Line, the judge indicated that, subject to what counsel may say, he was minded to deprive this acquitted defendant of costs by holding that he ought to have been convicted.  And that is what, after hearing counsel, the judge did.  The present appeal, brought with leave granted by the Appeal Committee, is against the judge’s judgment doing that.  In the Appeal Committee and in this Court itself, leading and junior counsel for the appellant and their instructing solicitors donated their services pro bono.

  17. On the question of whether it is ever open to an appellate court to deprive an acquitted defendant of costs by holding that he ought to have been convicted, this Court is not concerned with the merits of the magistrate’s reasons for acquitting the appellant.  Nor is this Court concerned with the judge’s reasons for holding that the appellant ought to have been convicted instead.  But we have nevertheless considered it appropriate to set out those reasons of the magistrate.  Likewise we consider it appropriate to set out those reasons of the judge, which he expressed thus :

    It seems to me that the victim’s silver telephone could have arrived at the time and place in question in these ways:

    (1)

    The policeman took it there having come across it in some way that can only be guessed at;

    (2)

    Either the second or the third prosecution witness (or the latter’s wife who was present) took it there;

    (3)

    A thief who was not the appellant dropped it there having  gone to the effort to steal it but then discarding it as a point which I was told was only some hundred feet or so from the scene of the crime;.

    (4)

    A thief who was not the appellant dropped it elsewhere and someone else took it to the place in question; and

    (5)

    The appellant took it there.

    In the circumstances that existed here, I regard the first four explanations as being fanciful. I judge that the fifth explanation is the only reasonable explanation to be inferred. In drawing that inference it was to be noted that there was no sworn evidence from the appellant to contradict it.

    I judge that whatever one may think about the quality of the identification of the appellant by the second prosecution witness, his possession of the stolen telephone so shortly after the commission of the crime, in the absence of an explanation, indicated guilt.

  18. In the course of saying why he felt able to deprive the appellant of costs by holding that the magistrate who acquitted him ought to have convicted him instead, the judge said this :

    In this context I perceive there to be a difference between appeals from summary cases and appeals on indictment involving the decisions of juries, as our system of justice allows far greater interference with decisions made summarily when reasons are provided by a professional tribunal than it does upon a verdict of a jury.  If the acquittal in this case had been that of a jury, I would not have been able to judge their reasons for it, as I can the magistrates reasons here, and I would not have known what basic facts the jury found established, but I know them here.

    Law

  19. Generally speaking, as Sir Gerard Brennan NPJ observed in Tsang Wai Ping’s case at p.93 B-C, a judge cannot know whether any finding on a fact or issue that was in contest before the jury would be palpably different from the view taken by the jury in acquitting.  That was said in regard to the judge in a jury trial.  But it is equally true in regard to an appellate court in an appeal from a jury trial. 

  20. Unlike juries, magistrates (and District Court judges) give reasons.  So where the acquittal is by a magistrate (or a District Court judge), it would generally be possible for the appellate court to see whether any finding would 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.

  21. The judge said that it would “offend” his “sense of justice” to make an order in the appellant’s favour.  That was because, as the judge made clear, he was of the view that the appellant ought to have been convicted.  But did the law permit the judge to act on that view of his as he did notwithstanding the presumption of innocence guaranteed by art.87 of the Basic Law?  The judicial oath includes a promise to uphold the Basic Law, safeguard the law and administer justice.

  22. In regard to an acquitted defendant’s costs, a magistrate’s jurisdiction is contained in s.3(1)(c) of the Costs in Criminal Cases, Cap.492.  It is there provided that “[w]here … a magistrate dealing with a summary offence or any offence summarily dismisses the information or complaint or acquits the defendant ... the magistrate may order that costs be awarded to the defendant”.  It would run counter to this provision if a magistrate were to treat an acquitted defendant as if he had been convicted.  A magistrate may not do that.  Nor may any court on appeal from the magistrate.  To deprive an acquitted defendant of costs by holding that he ought to have been convicted would be to deny his status of innocence (which status would be important enough even if regarded as a matter of form but is in truth a fundamental matter of substance).  Such a denial cannot be reconciled with the relevant legislation.  It would offend against the presumption of innocence.  And it would be contrary to the authority of Tsang Wai Ping’s case.

  23. Since the answer to the first and fundamental question is that it is never open to an appellate court to deprive an acquitted defendant of costs by holding that he ought to have been convicted, none of the other questions arise. The only point worth making on those other questions can be made simply by repeating an observation of the Chief Justice’s made in the course of the argument.  This is that the difficulties thrown up by the other questions tend to indicate a negative answer to the first question.

  24. Result

  25. The foregoing are the reasons why this appeal was allowed in the terms asked for on the appellant’s behalf, namely with costs in both courts below and with disbursements incurred in applying for leave to bring this appeal and in bringing it.  In addition to thanking the legal teams on both sides for their assistance, the Court expresses its particular thanks to leading and junior counsel for the appellant and their instructing solicitors for donating their services pro bono in the Appeal Committee and in this Court itself.


Representations

Philip Dykes SC and Oliver H Davies (instructed by Messrs Vidler & Co.) for the appellant.

Cheung Wai-sun and Winnie Lam (of the Department of Justice) for the respondent.


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