刑事檢控科各律師/高級律 - Department of Justice

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44 F. COSTS IN CRIMINAL CASES 刑事案件的訟費 MA 922/2003 Gall J (16.3.2004) *Lynda Shine #K Oderberg HAU Kai-hung Defendant charged with criminal offence/Charge withdrawn/ Defendant not bringing suspicion upon herself/Costs wrongly refused 被告人被控以刑事罪行 – 控罪撤回 – 被告人並非自招懷疑 – 錯誤拒絕判給訟費 The Appellant was charged on 14 April 2003 with an offence of possession of equipment for making a false instrument. The charge related to premises in Hunghom, where police found a number of machines, encoding machines, rolls of tin foil and pieces of white plastic cards from which cards could be made and two note books containing credit card data information. The charge related to the intention to use that equipment to create false credit cards, using the data from real credit cards so as to pass off the false cards as genuine. The Appellant testified that the premises in question had been rented to her, and sub-let to her co-accused, Lo. The Appellant, after arrest, made a post-record of a statement to the police in which she said ‘That unit is rented by me. I let my friend live there ’. Her first reaction to the police was that she had no connection with the premises. When further questioned, the Appellant failed to reveal who the sub-tenant was or any details about him. The Appellant was charged on the basis that she was the tenant of the premises, that she was known to her co-accused, and her admission that she had let the premises to Lo. On 28 July 2003, the prosecution amended the charge by deleting the name of the Appellant and withdrawing the charge against her. She then made an application to the magistrate for an award of costs. Section 3 of the Costs in Criminal Cases Ordinance, Cap 492, read: 3. Defence costs in summary proceedings (1) Where- (a) an information or complaint laid before a magistrate is proceeded with; (b) the magistrate may order that costs be awarded to the defendant.
45 The magistrate refused to award costs. He recognised that costs should follow the event unless the defendant was in some way at fault in one of the following situations: (1) the defendant brought suspicion upon himself, (2) the defendant misled the prosecution into thinking the case was stronger than it was, or (3) the defendant was acquitted on a technicality despite ample evidence to support a conviction. In refusing costs, the magistrate said: Held : In my view, a person who has lent her name to rent a flat and then subsequently let others occupy it on a causal basis has acted in her own peril: even giving credence to the most innocent explanation, Ms Hau has acted in a careless or even reckless manner and had brought suspicion upon herself. On this basis I rejected her application for costs. On appeal (1) It could not be true that a person who allowed someone else to occupy premises to which they had a right was inevitably bringing suspicion upon themselves; (2) The difficult issue was that the Appellant had a right to silence. On the one hand, according to the Respondent’s submission, she had an obligation, if she was to avoid being refused costs, to be as helpful as possible on matters not going directly to her own position, but, on the other hand, she had a right to preserve her position by not answering the police questions. Although the Appellant did not co-operate as fully with the police as they would have liked, nothing she did or said, and none of her actions, brought suspicion upon herself; (3) The magistrate was in error in finding that the Appellant had brought suspicion upon herself. Result - Appeal allowed. Costs awarded.
Page 1 and 2: To : All Counsel/Senior Law Clerks/
Page 3 and 4: 3 INDEX 目錄 A p. 4 - p. 17 第
Page 5 and 6: 5 問題以「案件呈述
Page 7 and 8: 7 存在。簡單來說 , 胡
Page 9 and 10: 9 17 條開宗明義地說 `
Page 11 and 12: 11 [English digest of MA 1270 of 20
Page 13 and 14: 13 were ordered by the Council or a
Page 15 and 16: 15 (1) The magistrate’s analysis
Page 17 and 18: 17 Result - Appeal allowed. No cons
Page 19 and 20: 19 judge left for the jury’s cons
Page 21 and 22: 21 involved. This was reinforced by
Page 23 and 24: 23 C. CRIMINAL APPEALS/ AGAINST SEN
Page 25 and 26: 25 CA 126/2002 Stock & Yeung JJA Lu
Page 27 and 28: 27 (5) Insofar as A3 and A4 complai
Page 29 and 30: 29 good character, he would have re
Page 31 and 32: 31 Viscount Kilmuir LC saying at p
Page 33 and 34: 33 (1) The magistrate had taken int
Page 35 and 36: 35 供事發當時司機的
Page 37 and 38: 37 The police regarded the Appellan
Page 39 and 40: 39 E. MAGISTRACY APPEALS/ AGAINST S
Page 41 and 42: 41 adduced by the Appellant as to h
Page 43: 43 Held : (1) The law was as set ou

刑事檢控科各律師/高級律 - Department of Justice

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