HKSAR v. GURUNG, SANDIP AND OTHERS

HKSAR v. GURUNG, SANDIP AND OTHERS

The appeal court held that the magistrate was entitled to refuse costs to D2 and D3 because their voluntary records of interview contained answers that legitimately raised suspicion; however the magistrate erred as to D1 by relying on an excluded record of interview that had been excluded on voluntariness grounds (not merely procedural or technical grounds), and therefore that excluded statement could not be used to refuse costs — D1 is entitled to costs for Charges 1 and 3, taxed if not agreed.

Citation
[2020] HKCFI 458
Parties
Respondent: HKSAR; 1st Appellant: GURUNG, SANDIP; 2nd Appellant: THAPA, GAGAN; 3rd Appellant: PUN, SUNIL KUMAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 April 2020
Case Number
HCMA535/2018
Procedural Posture
Magistracy Appeal (criminal) / Court of First Instance Judgment on Appeal
Outcome
D1 appeal allowed; D2 and D3 appeals dismissed.
Legal Topics
Costs of Prosecution, Admissibility of Cautioned Statements, Voluntariness of Interviews, Identification Evidence, Right to Costs
Source Language
EN
Criminal Law Evidence Procedure Costs Costs of Prosecution Admissibility of Cautioned Statements Voluntariness of Interviews Identification Evidence +1 more

Case Brief

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Parties

HKSAR

Respondent

GURUNG, SANDIP

1st Appellant

THAPA, GAGAN

2nd Appellant

PUN, SUNIL KUMAR

3rd Appellant

Procedural Posture

Magistracy Appeal (criminal) / Court of First Instance Judgment on Appeal

Legal Issues

  1. 1 Whether the magistrate properly refused costs to the appellants
  2. 2 Whether a court may rely on the contents of an excluded record of interview when determining costs
  3. 3 Whether answers in voluntary records of interview that raise suspicion justify refusal of costs

Ratio Decidendi

The appeal court held that the magistrate was entitled to refuse costs to D2 and D3 because their voluntary records of interview contained answers that legitimately raised suspicion; however the magistrate erred as to D1 by relying on an excluded record of interview that had been excluded on voluntariness grounds (not merely procedural or technical grounds), and therefore that excluded statement could not be used to refuse costs — D1 is entitled to costs for Charges 1 and 3, taxed if not agreed.

Court Disposition

D1 appeal allowed; D2 and D3 appeals dismissed.

Orders

  • Magistrate's refusal of costs in respect of D1 set aside
  • D1 is to have his costs of trial in respect of Charge 1 and Charge 3 only; amount to be taxed if not agreed