HKSAR v. CHAN HO

HCMA 182/2021

[2021] HKCFI 3512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 182 OF 2021

(ON APPEAL FROM KCCC 1720 OF 2020)

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BETWEEN
	HKSAR	Respondent
and
	CHAN HO	Appellant

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Before:  Hon Toh J in Court

Date of Hearing:  15 September 2021

Date of Judgment:  15 September 2021

Date of Reasons for Judgment: 25 November 2021

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REASONS FOR JUDGMENT

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1.  The learned Magistrate refused costs of the Appellant after acquitting him of all charges on the grounds that he had brought suspicion on himself.

2.  It is not in issue that the relevant principle is set down in Ting James Henry v HKSAR (No. 2)[1]:

“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.”        

3.  It is clear that the Appellant’s “conduct which formed part of the setting for the charges” is relevant provided that the discretion exercised by the trial judge does not “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”.

4.  Here, the learned Magistrate had acquitted the Appellant of Charge 1 (criminal intimidation) as she was not sure if PW1 was a honest and reliable witness especially as after the alleged words were spoken, PW1 returned to the scene to chat and smoke with the Appellant, which was not compatible with her evidence that she was scared by the intimidating words uttered by the Appellant.

5.  As for the 2^nd charge of possession of offensive weapon, the learned Magistrate was not sure if the Appellant intended to use the machete to injure PW1 as she accepted that what the Appellant said in court and in his record of interview that he intended only to scare PW1 and PW2 was “not a fanciful account”.      

6.  Therefore, in the circumstances to deprive the Appellant of his costs that he brought suspicion on himself was not justified in the circumstances. 

7.  So the appeal was allowed.

	(Esther Toh)
	Judge of the Court of First Instance
	High Court

Ms Claudia Ng, SADPP(Ag.) of the Department of Justice, for the Respondent

Mr Eric Frederick Curlewis, instructed by Munros, for the Appellant