DECISION ON COSTS
訟費判決書

Hon Pang JA (giving the Decision on Costs of the Court):
上訴法庭法官彭偉昌頒發上訴法庭訟費判決書：

The 1st Appellant (A1) and her husband (A2) jointly faced a charge of “fraud”.  They were convicted after trial and sentenced to imprisonment for 22 months and 25 months respectively. Both of them then appealed against their convictions.  After the hearing, this Court dismissed A2’s appeal but allowed A1’s appeal quashing both her conviction and sentence.
第一上訴人（A1）及其丈夫（A2）共同面對一項‘欺詐’罪，經審訊後被定罪，分別處入獄22個月及25個月，二人繼而就定罪提出上訴。聆訊過後，本庭駁回A2的上訴，但裁定A1上訴得直，定罪與判刑一併取消。

Overview of the case
案件概覽

The facts of the present case and the reasons for allowing A1’s appeal can be seen in the judgment handed down by this Court on 19 November 2021.  In short, the prosecution alleged that A1, a civil servant, in her application for housing allowance dishonestly made a false declaration that A2 had not been receiving any housing allowance from his employer.  Based on the long term marriage between A1 and A2 for over 20 years and the reply received in response to the request made by the Treasury to A1 for documentary proof, the trial judge held that A1 knew of A2’s receipt of his housing allowance.  However, this Court found the analysis of the trial judge unsafe, under which there was insufficient evidence to prove A1’s knowledge.
本案案情，以及A1上訴得直的理由，見本庭在2021年11月19日頒下的《判案書》。簡言之，控方指身為公務員的A1在申請房屋津貼時不誠實地虛假聲明A2沒有從他的僱主領取房津，原審法官則基於A1與A2二十多年的婚姻關係，以及庫務署要求A1提供文件證明時所得到的回覆，裁定A1知道A2在領取房津。然而，本庭認為原審法官的分析有欠穩妥，在他分析下的證據不足以證明A1知情。

Application for costs
訟費申請

A1 now applies for costs of the trial, the bail application and the appeal.
A1現申請包括原審、保釋申請、以及上訴的訟費。

A1 submitted that according to the judgment of this Court, there was actually not sufficient evidence to prove her knowledge of A2’s conduct.  The cautioned statement of A2 could even show that A1 had been deliberately kept in the dark.  The fact that A1 elected not to give evidence and made no statement under caution was only an exercise of her right of silence, which did not amount to bringing suspicion on herself.
A1認為，根據本庭的裁決，案中實沒有足夠證據證明她對A2的行為知情。A2的警誡供詞甚至能顯示A1是被刻意蒙在鼓裡。A1不作供，沒有在警誡下作任何陳述，只是行使緘默權，不構成自招嫌疑。

Respondent’s stance
答辯人立場

The Respondent objected to the application for costs of the trial, for the reason that having twice been requested by the Treasury, in 2000 and 2017, to provide documentary confirmation by A2’s employer that A2 did not receive any housing allowance, A1 never explained why such document could not be provided but only indicated by her memo reply that there was difficulty in obtaining the same.  She even challenged the Treasury by asking for the basis on which she was requested to produce such document (see exhibits P9 and P51).  In the Respondent’s view, A1, being arrogant and uncooperative, had actually brought suspicion on herself.
答辯人反對原審訟費申請。理由是，庫務署分別於2000年及2017年兩度要求A1提供A2僱主確認A2沒有領取房津的文件，但A1卻從沒解釋為何不能提供，其回覆便箋只表示有困難獲取文件，並以反問形式質問庫務署向她索取文件的基礎（見證物P9及P51）。答辯人認為，A1既態度囂張，又不合作，實屬自招嫌疑。

Taking one step back, the Respondent submitted that even if A1 were to be awarded the costs of the trial, given that the facts and points of law in the present case were not complicated, the main issues in dispute were factual, and the evidence involved was not complex, which could all be dealt with by one counsel, A1 should therefore be allowed the costs of only one of the counsel and that of the solicitors at the trial.
答辯人退一步陳詞，指即使A1可獲發原審訟費，但本案的案情和法律議題並不複雜，主要的爭議點均屬事實範疇，而且牽涉的證據也不繁雜，一名大律師當可勝任辦理，因此A1只應獲得原審其中一位大律師和事務律師的費用。

The Respondent also did not object to A1 being awarded the costs of the bail application and the appeal, save that the costs should similarly be confined to only one counsel and the solicitors.
答辯人亦不反對A1獲發保釋申請及上訴的訟費，但同樣認為當中的費用，只應限於一名大律師和事務律師。

Appellant’s counter-argument
上訴人反駁

A1 argued against the above submissions of the Respondent, contending that two documents in 2000 (exhibits P9 and P10) both showed that the two sides had other communications in addition to written correspondence.  P10 even directly pointed out that A1 had indicated that A2’s employer had refused to provide any documentary proof.
A1反駁答辯人以上的陳詞指，2000年的兩份文件（證物P9和P10），均顯示雙方有書面以外的溝通，P10更直接指出A1曾表示A2的僱主拒絕提供文件證明。

Discussion
討論

In general, unless there are positive reasons, an acquitted defendant should be entitled to the costs.  The positive reasons include: the defendant’s own conduct which has brought suspicion on himself, that the defendant has misled the prosecution into thinking that the case against him is stronger than it really is, and that the defendant is acquitted on a technicality, etc (Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, at page 535D-H).  The conduct which can be taken into consideration is not limited to the defendant’s conduct during the investigation and at trial, but also include the conduct which forms part of the setting for the charges laid against him (Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, para 16).  Therefore, the communication between A1 and the Treasury regarding provision of documents could also be taken into account.
一般而言，除非有確實理由，一名被判無罪的被告應獲發訟費。確實理由包括：被告的行為自招嫌疑、誤導控方使其認為所擁有的證據比實際為強、以及被告是否因技術理由而獲判無罪等（Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531，第535頁D-H）。可考慮的行為不局限於被告被調查或審訊期間的行為，亦包括構成控罪背景的行為（Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730，第16段）。因此，A1與庫務署就提供文件而進行的溝通，可作考慮。

This Court has referred to exhibits P9 and P10 at para 26 in our judgment.  The relevant part shows that A1 has correctly countered the Respondent’s submissions:
本庭在本庭的《判案書》第26段提到證物P9和P10的內容。有關的內容顯示，對於答辯人的陳詞，A1的反駁是正確的：

“… The first paragraph in P9 showed that before the two parties commenced their written communication, [A1] had talked over the phone with a staff of the Treasury. After receiving P9, the same staff of the Treasury expressed in the last paragraph at P10: ‘You advised that your spouse’s employer refused to provide you and your spouse with the requisite documentary evidence.’ …”
「… P9的第一段顯示，雙方在展開書面對話之前，[A1]曾和庫務署的職員通過電話。在收到P9之後，庫務署的同一位職員則在P10的最後一段表示：“You advised that your spouse’s employer refused to provide you and your spouse with the requisite documentary evidence。” …」

However, the above explanation in relation to the refusal of A2’s employer to provide the proof was simply inconsistent with the facts. The employer not only did not refuse, but in fact issued a letter confirming the payment to A2 of a monthly sum as housing allowance without usage restriction (exhibit P106).  The fact that A1 applied for the government housing allowance while A2 was enjoying private housing allowance, coupled with the explanation recorded in P10 which is inconsistent with the facts, obviously aroused suspicion.
然而，上述有關A2的僱主拒絕提供證明的解釋，根本與事實不符，因為該僱主不但沒有拒絕，而且還應要求發信確認每月向A2發放一筆沒有規定用途的房津（證物P106）。A1在A2正受惠於私人房津的同時照樣申請政府房津，再加上P10所紀錄並與事實根本不符的解釋，顯然引人懷疑。

Although A1 might have been misled by A2 and hence applied for housing allowance and gave explanation which is inconsistent with the facts, it does not mean that such conduct did not amount to her bringing suspicion on herself.  As it was said in HKSAR v Rahman Md Sheikh Mojibur [2020] HKCA 53, at para 26:
雖然A1可能是因為受到A2誤導而申領房津及作出不符事實的解釋，但這不等於其行為並非自招嫌疑。如HKSAR v Rahman Md Sheikh Mojibur [2020] HKCA 53 第26段所說：

“… Whether or not the defendant brings suspicion on himself and/or results in the prosecution being misled does not logically depend on the defendant’s state of mind.”
“… Whether or not the defendant brings suspicion on himself and/or results in the prosecution being misled does not logically depend on the defendant’s state of mind.”

Furthermore, A1 has given no explanation on the content of P10 and the charge before and during the trial.  She did not explain, perhaps because she might not wish to make any accusations against her husband; however, this is not a good reason for her to be awarded the costs when she has brought suspicion on herself.  As in Rahman Md Sheikh Mojibur, at para 26:
進一步說，A1在審訊前和審訊期間均沒有就P10的內容和控罪作出解釋。A1不解釋，或許是因為不想對丈夫作出指控，但在自己的行為引起懷疑下，這並非應該獲發還訟費的理由，就如Rahman Md Sheikh Mojibur 案第26段另有所述：

“… we should deal with Mr Chan’s argument that there may have been a good reason for the applicant not to disclose his mobile telephone business dealings ...  The notion that a defendant may properly make a claim for reimbursement from public funds despite not disclosing that he had been cheating the Inland Revenue Department does not sound a very equitable one, even in a criminal context where the scales are necessarily tilted in favour of the defence …”
“… we should deal with Mr Chan’s argument that there may have been a good reason for the applicant not to disclose his mobile telephone business dealings ...  The notion that a defendant may properly make a claim for reimbursement from public funds despite not disclosing that he had been cheating the Inland Revenue Department does not sound a very equitable one, even in a criminal context where the scales are necessarily tilted in favour of the defence …”

We agree that A1 has brought suspicion on herself and should not be awarded the costs of the trial.
本庭同意A1是自招嫌疑，不應獲發原審訟費。

The Respondent does not object to A1 being awarded the costs of the bail application and the appeal, save that the counsel’s fees should be confined to that of only one counsel.  This appeal involves whether, from the many years of marriage of the two appellants and the content of A1’s memo reply to the Treasury regarding the provision of documents, it could be inferred that A1 had knowledge of her husband’s receipt of housing allowance.  The disputes in the case are not particularly easy to deal with, and this Court has eventually found the trial judge’s analysis unsafe.  Therefore, it is not unreasonable for A1 to have engaged two counsel, including one senior counsel, to deal with the appeal.
答辯人不反對A1獲發保釋申請及上訴訟費，但認為大律師費用應限於一名大律師。本上訴涉及可否從兩名上訴人多年的婚姻關係，以及A1就提供文件而以便箋回覆庫務署的內容，推斷她對丈夫領取房屋津貼的事知情，箇中的爭議並不特別容易處理，而且本庭最終也認為原審法官的分析有欠穩妥。因此，A1聘用兩名大律師處理上訴，其中一名為資深大律師，並非不合理。

Decision
判決

This Court rejects A1’s application for costs of the trial, but orders that she be entitled to the costs of the bail application and of the appeal, including the fees of two counsel, with such costs to be taxed by a master if not agreed.
本庭拒絕A1原審訟費的申請，但下令她可獲發保釋申請以及上訴的訟費，包括兩名大律師的費用，金額由雙方自行同意，否則交由聆案官評定。

Mr Eric Wan, instructed by Louie Chan & Co., for the 1st Appellant
第一上訴人：由陳漢光律師事務所轉聘溫家榮大律師代表

Miss Peggy Leung, Senior Public Prosecutor, of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官梁寶琦女士代表