DCCC 34/2014





CHAN Suk-yee, Suky


Before: H.H. Judge G. Lam

Date: 18 March 2015

Present: Mr. James Sherry, counsel on fiat, for HKSAR.
Mr. Cheng Huan, SC leading Mr. Edward Tang and Mr. Wilson Tam instructed by M/s Choi & Associates, for the defendant.

Offence: Theft(盜竊)


1.The defendant was found not guilty of a charge of “Theft”. Leading defence counsel Mr. Cheng applied for costs on her behalf.

2. The prosecution alleged that the defendant has stolen a total sum of $3.3 million from her employer (PW2) over a period of 6.5 years. Bank records revealed that between 25 September 2006 and 8 February 2013, a total of 66 cheques (amounting to a total sum of $3,332,644.52)were drawn from PW2’s company bank account. The defendant used 61 cheques to settle her credit card payments with various banks;and the remaining 5, her tax and the licence fees of her car.

3. The defendant admitted having used those 66 cheques. The only issue taken at trial was whether her appropriation of the chequeswas carried out with the consent of PW2. The prosecution case thus hinges entirely on the credibility and reliability of PW2’s evidence.

4. After trial, I had doubts as to PW2’s credibility as a witness. Hence, I was not satisfied beyond reasonable doubt that the 66 cheques(as well as the $3.3 million involved) were given to the defendant without PW2’s consent.

5. It is trite law that costs should be awarded to an acquitted defendant unless there are some positive reasons to deprive him of suchcosts. Such reasons include whether he has brought suspicion upon herself.

6. In the present application, the issue is whether the defendant has brought suspicion upon herself. On this matter, the Court ofFinal Appeal in TONG Cun Lin v HKSAR [2000] 1 HKLRD 113 held :-

“When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he shouldnormally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despitethis general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look tohis conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular periodof time. . . . it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’sconduct during the investigation and at the trial . . . Wrapped up with this is the strength of the case against the defendant andthe circumstances under which he came to be acquitted . . . “[1]

7. Regarding a defendant’s conduct which brings suspicion upon himself, Li CJ in TING James Henry v HKSAR (No.2) (2007) 10 HKCFAR 730 held :-

“It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion onhimself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionary exercise. However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the chargeslaid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’sacquittal by the tribunal of fact.”[2] (Emphasis added)

8. For the purpose of the present case, there is nothing improper for an employer to reward his employees. It is, however, most unusualand rare to issue cheques drawn from the company’s account to settle an employee’s credit card payments, tax and motor vehicle licensefees as reward(s) for that employee. Furthermore, the real purpose of those cheques was covered up in the company’s books.[3]

9. I have reminded myself that the defendant was charged with a single offence of “Theft”. Hence, I would only consider her conductwhich is relevant to the charge.

10. It is not in dispute that she took the cheques and used the sums of money involved to her own benefit. Even with the consent ofPW2, she received her reward(s) in the most peculiar way. In my view, her act of appropriation has clearly brought suspicion uponherself. Although it transpired after trial that PW2 might have consented to the issue of those cheques and how they were used,the defendant has no one but herself to blame for accepting reward(s) from PW2 in such peculiar and suspicious manners. She hadthe choice of refusing to accept them or insisting on receiving them through proper channels.

11. On the other hand, the defendant has offered her version of the events to the Police soon after being arrested. She has maintainedher position throughout, and it was based upon the possibility of PW2’s consent that she was acquitted of the charge. Notwithstandingthe defendant’s disclosure of her defence, the Police, for whatever reasons, did not conduct further investigation into the matteror verify her assertions. In my view, the prosecution needs to bear partially the consequences of its decision to bring the defendantto trial.

12. Based on the reasons stated above, I order that the defendant be entitled to 50% of her costs; amount to be taxed, if not agreed.

(G. Lam)
District Judge

[1] See p.117 F to I.

[2] See p.735 B to E.

[3] This is an undisputed fact. I have, however, disregarded the “purpose” of doing so as alleged by the defendant. I drew no adverseinference against her in this regard in respect of this application.