HCAL 285/2021

[2024] HKCFI 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 285 OF 2021

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J U D G M E N T

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A. Introduction

1. The Applicant (“D1”) was charged with two offences, of which he was acquitted after trial before HHJ Ernest Lin (“Judge”). The acquittal was explained by the Judge in his Reasons for Verdict. The Respondent (“Prosecution”) appealed against the acquittal (“Appeal”) by way of case stated to the Court of Appeal, which dismissed the Appeal. However, despite the acquittal, the Judge declined to award costs in favour of D1, on the broad basis that D1 had brought suspicion on himself by his conduct (“Costs Decision”).

2. In these proceedings, D1 seeks leave to apply for judicial review so as to challenge the Costs Decision – and, if leave is granted, for substantive relief to quash the Costs Decision and for an order of mandamus requiring the Judge to award the costs to D1. It is common ground between the parties that it is appropriate to adopt the procedure of applying for judicial review of, rather than to appeal against, the Costs Decision. Indeed, under section 19 of the Costs in Criminal Cases Ordinance Cap 492 (“CCCO”), there is no right of appeal from such a costs order as was made by the Costs Decision.

3. Directions were given for a rolled-up hearing, but the proceedings were generally adjourned pending the resolution of the Appeal, which occurred by the Judgment of the Court of Appeal dated 16 June 2023. It can be noted that no further appeal was pursued by the Prosecution.

4. The rolled-up hearing eventually fixed took place on 31 July 2024, at which: (1) D1 was represented by Mr Ching Y Wong SC, leading Ms Sylvia Tung and Mr Kelvin Li; and (2) the Prosecution was represented by Ms Human Lam, Senior Public Prosecutor and Mr Jerome Ching, Senior Public Prosecutor, both of the Department of Justice.

5. At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment.

6. It can be noted that the trial and the Appeal were conducted in Chinese, and the Reasons for Verdict, the decision on the Appeal, and the Costs Decision were given in Chinese. However, I have – and I have used – what I am told are the official English translations of those documents. I shall quote from the translations as they are, and any infelicities as exist in the English are apparently attributable to the translation, rather than to any original author.

B. The Charges

7. D1 was one of three defendants (the others being “D2” and “D3” respectively) in DCCC 678/2019. All three faced the following two charges:

(1) Charge 1: Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance Cap 200 ;

(2) Charge 2: False statement by company directors, contrary to section 21(1) of the Theft Ordinance Cap