Court of Final Appeal dismissing appeal on costs in criminal proceedings
Introduction
On 5 July 2024, the Appeal Committee of the Court of Final Appeal (the Appeal Committee) in HKSAR v. Chen Fen [2024] HKCFA 19 refused to grant leave to the Applicant to appeal against the Judgment of the Court of First Instance by Mrs Barnes J refusing the Applicant's application for costs.
Background
The Applicant was charged in the alternative with attempted rape and indecent assault. He was acquitted when the prosecution offered no evidence. The Applicant then made an application for costs, asking the court to award him costs for the preliminary inquiry, the adjournment of trial and the preparation of the trial. However, the application was refused by the Mrs Barnes J (the Judge) of the Court of First Instance1.
Grounds of appeal to the CFA
The Applicant sought leave to appeal against such refusal on the basis of substantial and grave injustice, raising two grounds, namely:
Ground 1
The Judge had made a mistake in finding that the prosecution had reason to believe that the complainant (X) would testify at the trial on the erroneous basis that X had appeared and given evidence at the preliminary inquiry, when she had not done so; and
Ground 2
There was insufficient evidence that the Applicant had brought suspicion upon himself, the Judge having wrongly concluded that independent evidence relied upon by the prosecution supported the allegations made by X.
Legal principles
The principles as to costs where a defendant has been acquitted are well-established.
Section 4 of the Costs in Criminal Cases Ordinance (Cap. 492) provides that where a defendant is not tried for an offence for which he has been indicted or committed for trial, the District Court or the Court of First Instance may order that costs be awarded to the defendant.
In HKSAR v Chan Kam Ching (No 2) (2022) 25 HKCFAR 181 at §8, the Court stated:
"Upon an acquittal, the court normally makes a costs order in favour of the accused unless there is a positive reason for departing from that rule. Most frequently, such a reason is found to exist where the accused has brought suspicion on himself or herself, leading to the prosecution. This may be due to that person’s conduct in the course of the investigation or during the trial, but the discretion is not bounded by any inflexible rule. Conduct of the accused prior to the investigation and trial stages, including conduct providing the setting for such charges, may have invited suspicion and so be taken into account in the exercise of the discretion.”
The Appeal Committee’s decision
Applying the above principles, the Appeal Committee held that the test is whether the circumstances justify departing from the usual rule. In particular, in a case like the present, the question is whether, by his conduct, including conduct providing the setting for the charges, the Applicant invited suspicion on himself. It is important to note that the test is not whether the evidence would have been sufficient or probably sufficient to secure his conviction, but just whether the circumstances raising the suspicion were enough to justify the Judge in exercising her discretion against granting him costs. On such basis, the Appeal Committee found that the evidence outlined above provided an ample basis for the Judge’s view that the Applicant had indeed brought such suspicion upon himself.
It is also pertinent to note that, as the Appeal Committee pointed out in Wong Tak Keung v HKSAR2:
“Within the framework of the relevant principles, costs are dealt with on the basis of a broad discretion. In the absence of any controversy over the principles that govern the award or refusal of costs, it would take rare and exceptional circumstances indeed to warrant an appeal to the Court of Final Appeal on costs alone.”
In the Appeal Committee's view, there is no reasonable basis on which the Court of Final Appeal could be asked to interfere with the Judge’s exercise of discretion in refusing Applicant his costs. Leave to appeal is therefore refused.
Key Takeaway
The rulings made by the Appeal Committee in this case have significant implications.
To start off, it is important to bear in mind that when a person is acquitted, it does not necessarily guarantee that costs will be awarded to him/her. Instead, the key question is to ask whether there were any circumstance(s) that would justify the Court in exercising a discretion against the decision of granting costs to the acquitted person. However, it is rather unclear as to the threshold and criteria in such connection. It is not solely based on whether the evidence would have been sufficient or probably sufficient to secure a conviction. Instead, it revolves around whether the circumstances that raised suspicion were enough to justify the judge's exercise of discretion.
As can be seen in the present case, neither the Judge nor the Appeal Committee provided any analysis or explanations as to why they considered the facts to be sufficient in raising sufficient suspicion. The Appeal Committee simply provides in their Reasons for Determination that "in our view, there is no reasonable basis on which the Court could be asked to interfere with the Judge's exercise of discretion in refusing A his costs." Therefore, it seems there is no justifiable ground(s) for reaching this decision and one could question whether such discretion is arbitrary, exercised solely on a subjective basis. This is hardly convincing and satisfactory.
Secondly, in cases where a defendant is not tried for an offense they have been indicted or committed for trial, it is most unfortunate that they are deprived of the opportunity to refute the evidence presented by the prosecution. Hence, when considering whether to award costs to the defendant in such situations, neither the Court of First Instance nor the Appeal Committee delved into any of the details and contexts of each piece of evidence individually, which are essential in determining whether the same could draw suspicion upon oneself.
Under such circumstances, this important aspect remained unaddressed at any level of the Court system. Naturally, one would question how the Judge at the Court of First Instance exercised her discretion in directly refuse awarding costs to the defendant, when she never scrutinized the context of evidence in the first place and hence probably not in a well-informed position to determine whether the defendant drew suspicion upon himself. By the same token, how could the Appeal Committee even come to the view that there was no reasonable basis for them to interfere with the decision made by the Court of First Instance, when the basis for the same was so unclear?
Discretion has always been an essential and useful tool, providing the Court with flexibility to make a fair and reasonable decision depending on the actual circumstances on a case-by-case basis. However, now it is also feared that such discretion may only provide convenience to the Court to "jump" directly to a decision according to their preference. In the present case for instance, it seems that as long as there is some evidence to support the Appeal Committee's subjective perspective that the defendant had brought suspicion upon themselves, the Appeal Committee may decide to refuse costs. The Court of Final Appeal owes the defendant a proper explanation as to why they found that there was no reasonable basis to interfere with the Judge's initial decision.
1 [2022] HKCFI 3618
2 FAMC 47/2005
