HKSAR v. CHRISTOPHER HODGSON POON

HCMA 162/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 162 OF 2017 (ON APPEAL FROM ESCC NO 3300 OF 2016) ____________________________ BETWEEN HKSAR Respondent and CHRISTOPHER HODGSON POON Appellant ____________________________ Before: Deputy High Court Judge Anthony Kwok in Court Date of Hearing: 16 August 2017 Date of Judgment: 25 August 2017 _______________ J U D G M E N T _______________ Introduction This is an appeal against the refusal by the magistrate to award costs of the defence to the appellant upon his acquittal of the charge of “Using a Copy of a False Instrument” after trial on 16 February, 2017 at the Eastern Magistracy. The Facts The prosecution case was simple and straight forward. The subject matter of the charge is a photocopy motor vehicle insurance cover note (“P1”) which was a counterfeit. At the material time, the appellant submitted a stack of documents including P1 to PW1 at her counter who was an assistant clerical officer of the Transport Department. During the course of processing the application forms, PW1 found P1 to be suspicious as she had spotted marks of “cut and paste” on the cover note. She then referred the matter to her colleague PW2 to follow up. PW2 called the insurance company which purportedly issued the cover note to verify the authenticity of P1 and confirmed its falsity. The matter was then reported to the police and PW4, a police officer later attended the scene and arrested the applicant. According to PW4, the appellant did not look surprised when he saw uniform police officers approaching him; he did not make any attempt to flee and he was cooperative; and the appellant told him that the cover note was given to him by his agent. The appellant however, did not provide the name of the agent nor any further details to him and he has no recollection of the appellant showing him any message on his cellphone. Reasons for Finding the Appellant Not Guilty The magistrate was of the view that there is no evidence before him to suggest the appellant was the maker of P1. He correctly pointed out that while the it was overwhelming that the appellant was using P1 which was found to be false, the main issue was whether the appellant could have easily spotted those “cut and paste” marks on P1. The magistrate could not be sure about this and so he gave the appellant the benefit of doubt and found him not guilty. Reasons For Refusing Costs The magistrate found the appellant had brought suspicion upon himself. As it was the appellant who signed all those application forms submitted to the Transport Department, the only reasonable and irresistible inference is that the appellant was the one who completed those application forms and inserted the counterfeit cover note. Also the appellant had made a declaration on the application form stating that he shall be liable if he knowingly provides any false information in this form. The magistrate further explained why the appellant has brought suspicion upon himself in his written reasons: - “15. The appellant told the arresting officer PW4 that the cover note was given to him by an agent. That is all he disclosed according to PW4’s evidence. In other words, the appellant did not disclose the name of his agent nor any further information about the agent to the police to follow up during the investigation. Defence counsel did not put or suggest to PW4 that the appellant had provided any further information to prove his innocence at any time whether before or at the time of the arrest, or to the police subsequent to the arrest and before he was charged. Defence counsel only suggested to PW4 that the appellant had at the scene shown him message or messages on his cell phone exchanged between the appellant and his agent. PW4 disagreed. Such messages if existed at all could be used to challenge PW4’s evidence, but defence never sought to adduce them as evidence. 16. The appellant elected not to give evidence nor called any witness. He told PW4 that he got the cover note from his agent is merely a bare assertion carries no weight. The prosecution case against the appellant is basically unchallenged. That is to say, the appellant presented a counterfeit cover note to the Transport Department as proof that the vehicle he sought to transfer was insured and intended the Transport Department to accept it as genuine. 17. Although an accused person has the right to remain silent, when he found himself in a situation like the appellant being arrested for using a false instrument, if he had an inculpable explanation, I would have thought any right minded person would not have any hesitation but volunteer all information he has about the agent as in the present case, so that the police could investigate into the matter in order to have his name cleared. In the present case, the appellant chose to remain silent and to face prosecution for an offence he claimed he did not commit, that defeats all common sense and logic.” Grounds of Appeal Counsel for the appellant put forward a numbers of arguments in the hearing but essentially, the arguments revolve around the following two important grounds of appeal which merit my consideration: - The magistrate had erred in holding that the appellant had brought suspicion upon himself by exercising his right to remain silent, and/or by not providing an incuplatory explanation/volunteering all information he had about the agent in the present case, when the appellant had an absolute right to remain silent and had no obligation or duty to provide any such explanation, information or defence; and The magistrate erred in holding that the appellant had brought suspicion upon himself when he could not be sure that the appellant knew or believed the cover note to be a counterfeit, i.e. that it is the prosecution who has failed to prove its case against the appellant. The appellant was not acquitted on a defence that was based on matters only known to the appellant. Discussion I agree with the submissions advanced on behalf of the appellant. By criticizing the appellant for his failure to volunteer more information about the agent to the police in order to clear his name in this charge, firstly the magistrate have fallen into error by jumping to the conclusion and in so doing assumed, and in my view improperly, that the appellant would not have been prosecuted had he done so. Secondly, by so ruling, the magistrate was in effect suggesting that the appellant had a good defence to the charge and should have revealed it prior to the trial. As DHCJ McMahon (as he then was) said in HKSAR v Tsang Chun Chiu William, HCMA 403/2002 at paragraph 14: “…it seems to me to be difficult to describe a defendant who merely has not revealed his defence prior to trial, as unreasonably having brought suspicion upon himself or as having misled the prosecution in any way into thinking their case was stronger than it really was. A defendant is generally entitled not to reveal his case…” In HKSAR v Bain, Genaro Oliva, HCMA 50/2009, Saw J echoed the above principle and held that a domestic helper who did not give evidence in the trial and was acquitted of the charge of “breach of condition of stay” who was suspected of working as an odd job worker on the street should not be deprived of the costs of the trial. He said at paragraph 16: “…Nothing said or done by the appellant can possibly be said to have unreasonably brought suspicion upon himself. Neglecting to voluntarily offer an explanation for his presence that day did not bring suspicion upon himself in the circumstances of this case.” In the present case, upon closer analysis of the magistrate’s reason for his refusal to grant costs to the appellant, what he was trying to say was that if the appellant had given more details about the agent who has supplied him with the counterfeit cover note, it may well have been that the police would not have charged him and brought him to the court. With respect, there is no basis for that conclusion and the magistrate has obviously placed too much emphasis on this assumption. More importantly, one must not forget that the appellant was not even acquitted on merits of that defence. The appellant elected not to testify or call any witness (including the agent) on his behalf during the trial. He was not acquitted because of the evidence by the agent which he subsequently chose to testify or call when he gave evidence. In other words, as the counsel for the appellant has rightly pointed out, the appellant was not acquitted on a defence that was based on matters only known to the appellant. It is apparent from the magistrate’s finding that the appellant was acquitted as he was not satisfied beyond a reasonable doubt that the appellant could have easily spotted those “cut and paste” marks on the cover note. In other words, the prosecution case was inherently weak and the prosecution has not discharged the burden and failed to prove whether the appellant knew or believed that P1 was a counterfeit cover note. Given the lack of direct evidence as to the knowledge and belief of the appellant and the circumstances of the case, the decision by the appellant not to testify or call any evidence in the trial cannot be faulted. He has conducted his case reasonably and in accordance with his legal entitlements and for the above reasons, the fact that he did not give any further details about the agent was neither here or there and could not be regarded as having brought suspicion upon himself or misleading the prosecution into thinking their case was stronger than it was. For the above reasons, I disagree with the respondent who submitted that there was clear evidence before the magistrate for him to conclude that the appellant had in fact brought suspicion upon himself. On the contrary, in my view, there is no sound basis for saying that the appellant had brought suspicion upon himself when the prosecution evidence only revealed that he submitted the cover note to support his application to transfer the ownership of a vehicle in the Transport Department and that was all the prosecution case was about. Accordingly, I will allow this appeal to award costs of the trial to the appellant to be taxed, and I also award the appellant his costs of this Appeal to be taxed, if not agreed. (Anthony Kwok) Deputy Judge of the High Court Ms Laura Liu, PP of the Department of Justice, for the respondent Mr Nicholas Oh of counsel, instructed by Lee & Chow, for the appellant