DCCC191/2023

DCCC191/2023

A A B DCCC 191/2023 B [2025] HKDC 1970 C C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 191 OF 2023 F F G ---------------------- G HKSAR H H v MOHAMMAD Liaqat I I ---------------------- J J Before: Deputy District Judge May Chung K K Date: 17 November 2025 L Present: Mr Jeevan Hingorani, Counsel on Fiat, for HKSAR L Mr Wayne Walsh S.C. leading Mr Fergus Tam, instructed by Messrs M M Mohnani & Associates, for the Defendant N Offences: [1] & [2] Dealing with property known or believed to represent N proceeds of an indictable offence (處理已知道或相信為代表從可公 O 訴罪行的得益的財產) O P P Q -------------------------------------- Q RULING ON COSTS R R -------------------------------------- S S T T U U V V  2 A A B 1. The Defendant (“D”) was found not guilty of two counts of B “Dealing with property known or believed to represent proceeds of an C C indictable offence”, contrary to sections 25(1) and (3) of the Organized D and Serious Crimes Ordinance, Cap. 455. D applies for costs pursuant to D section 5 of the Costs in Criminal Cases Ordinance, Cap. 492. The E E prosecution objects to the application. F F 2. It is agreed by the parties that where a defendant is acquitted it is G G his right that he should be compensated out of public revenue for the H costs incurred in defending the charges. H I I 3. The prosecution’s argument is that D’s conduct had brought J suspicion on himself, referring to some of D’s answers in the three J video-recorded interviews (“the VRIs”) given voluntarily by D. It is K K submitted that D had given contradictory answers regarding whether he L had ever authorised / allowed anyone to use the account in Charge 1 or L had lent the account to others; and that D had claimed he could not M M remember some transactions of significant amounts in the VRIs but N subsequently failed to check and revert to the police about this – and as N such, he had brought suspicion on himself. The prosecution also places O O reliance on the Court’s ruling that there was a case to answer. P P 4. I bear in mind the relevant principles set out in the case Q Q authorities cited by parties, including Ting James Henry v HKSAR (No R 2) (2007) 10 HKCFAR 730, Hui Yui Sang v HKSAR (2006) 9 HKCFAR R 308, and Tong Cun Lin v HKSAR (1992) 2 HKCFAR 531. I have also S S considered the recent Court of Appeal cases of HKSAR v Rahman Md T T U U V V  3 A A B Sheikh Mojibur CACC 333/2018 and 律政司司長 訴 張鎮泰及另一 B 人 [2025] 5 HKC 234. C C D D 5. D’s conduct during to the investigation (such as the answers E given in the VRIs in this case) is relevant to the court’s exercise of E discretion in respect of an application for costs upon an acquittal. F F However, this is subject to the caveat that “the discretion is not exercised G so as to undermine the presumption of innocence, and in particular, G provided that its exercise does not involve the court in adopting a H H position at variance with the defendant’s acquittal by the tribunal of I fact.”1 Moreover, the court must not take “a view of the facts palpably I different from that taken by the jury and reflected in the not-guilty J J verdict.”2 K K 6. I am aware that this is not a case in which D chose to exercise L L his right of silence at the investigative stage – D chose to answer M questions posed during the VRIs, including that he had a second-hand M mobile phone business3. I found that his answers given under caution in N N the VRIs were consistent with his evidence in the box, but he was able to O provide more information when he testified. At the investigation stage O (during the VRIs), the police had not obtained sufficient information for P P D to be able to answer their detailed questions; subsequently, D had Q obtained additional information about the transactions himself (for Q example, by punching in the account numbers of counterparties of R R relevant transactions at ATM machines); in this way, D was able to give S S 1 Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730 at 735E-F. 2 T Tong Cun Lin v HKSAR (1992) 2 HKCFAR 531 at 535H. T 3 As referred to by the prosecution in its submission dated 4 November 2025 in para 10. U U V V  4 A A B more detailed explanations at trial. I do not agree with the prosecution B argument that D’s answers in the VRIs were contradictory or inadequate C C (or that D should have reverted to the police with more information). I D do not see how the prosecution can say that D had brought suspicion D upon himself given the court’s findings. E E F 7. It must be noted that the circumstances of this case are different F from those in HKSAR v Rahman Md Sheikh Mojibur CACC 333/2018. G G In that case, the respondent faced a single charge of money laundering, H and was acquitted after trial; the judge ordered costs to be awarded to the H respondent, and the appellant appealed against the costs order; it was I I argued that the respondent had brought suspicion on himself (i.e., he had J chosen to inform the police in his video-recorded interview about his J occupation and salary but had chosen not to disclose the fact of his K K earnings in his second-hand mobile telephone business at all). In L allowing the application and setting aside the costs order of the judge, L the Court of Appeal stated that: M M “25. … we must emphasise that a defendant is perfectly entitled not to N N answer questions or disclose his defence to the investigating authorities. That is his right. But if he chooses to exercise it, it does not mean that he O cannot be deprived of costs if he had a perfectly good defence but chose O not to give the slightest hint as to its existence, as happened in the present case. After all, it is possible that had the respondent disclosed his business P dealings and the documentary evidence in support of them, the P prosecution might have considered that they did not have enough evidence Q to proceed; in which case, the costs which were occasioned to the public Q and his own purse would have been saved. As it was, the judge accepted that ‘without telling the police that the defendant was engaged in second R hand mobile phone trading (it) would be impossible for the police to know R of this fact’…” S S T T U U V V  5 A A B 8. As already stated, D disclosed his business dealings at the B investigation stage, and his answers in the VRIs were consistent with his C C evidence in the box. D D 9. Further with regard to the prosecution’s criticism of D not E E remembering transactions in relation to his bank account, I agree with F the defence that a person under investigation cannot be said to have F brought suspicion upon himself just because he did not (at the G G investigation stage) raise an argument later on used by his advocate with H a view to casting a reasonable doubt on the prosecution case.4 It should H be added that it seems the prosecution is asking D in this case to have I I made perfect disclosure at the investigation stage. As held by the Court J of Appeal in 律政司司長 訴 張鎮泰及另一人 [2025] 5 HKC 234, the J K prosecution should not seek to raise the standard of D’s disclosure at the K investigation stage to perfection; to require a defendant acquitted after L L trial to have cooperated with the relevant authorities to their satisfaction M at the investigation stage before he could be awarded costs was not the M standard specified in Tong Cun Lin.5 N N O 10. As to the contention that D had made a no case to answer O submission that was rejected, it is clear that there being a prima facie P P case does not mean D had brought suspicion on himself; clearly, there Q being a case to answer does not mean costs should not be awarded. Q R R 11. In the circumstances of this case, I am of the view that costs S should be awarded to D. S 4 T See HKSAR v Balasinghe Pedige Sriyanthi HCMA 413/2004 at para 5. T 5 See 律政司司長 訴 張鎮泰及另一人 [2025] 5 HKC 234 at 243 B-C. U U V V  6 A A B B 12. Regarding the application for certificate for two counsel, Mr C C Hingorani, counsel-on-fiat, objects to such a certificate being awarded; D however, it is fairly acknowledged by him that he received a lot of D assistance from those instructing him (in light of the large amount of E E materials in the case, with many tables having to be prepared). On this F issue, the court has to take into account factors including the nature and F gravity of the offence, the complexity of the case and the sentence a G G defendant might face. When considering if it were necessary to employ H leading counsel, the appropriate question to ask is: did the defendant act H reasonably in instructing the counsel that he did? It is not sufficient I I reason for the court to disallow leading counsel’s fees from the award J merely on the ground that experienced junior counsel or a solicitor could J have handled the proceedings (see Archbold Hong Kong 2025 [6-45], R K K v Dudley Magistrates’ Court ex p Power City Stores Ltd (1990) 154 JP L 654, HKSAR v Tsang Sio Pou [2020] 4 HKLRD 729). L M M 13. In this case, the issues were not complex, but the charges faced N by D were very serious; if D had been convicted, he would have faced a N substantial period of imprisonment and his reputation as a leader in his O O community and businessman would have been severely tarnished. I have P borne in mind that an award of costs is compensatory rather than P punitive. All in all, I am of the view that D’s decision to instruct senior Q Q counsel for his defence was a reasonable one. R R 14. Moreover, although there were only factual disputes involved S S and the case was not complex, the documents were voluminous, with the T paginated bundle numbers going up to some 6,000 pages; the trial took 7 T U U V V  7 A A B days. There were many documentary exhibits to go through and B numerous transactions to identify, analyse and explain. I am of the view C C that it was reasonable for D to have engaged two counsel for his defence D in the case. D E E 15. In summary, D’s costs application is allowed, and I grant F certificate for two counsel (being the fees incurred in instructing senior F counsel and a junior counsel). Such costs are to be taxed if not agreed. G G H H I I J J K K L L M M N N O O ( May Chung ) P Deputy District Judge P Q Q R R S S T T U U V V