Magistrate Daniel Tang awarded the Defendant costs for, inter alia, arguing the Magistracy has no jurisdiction due to time bar, and also costs for the trial proper, after finding a hard-of-hearing youth not guilty of assaulting a police officer.

The Defendant, then 19 years old with profound and severe hearing loss in his left and right ears respectively, was charged with assaulting a police officer. The prosecution alleged that the Defendant confessed to a police constable after being arrested by saying “I was impulsive and hit [the] police [officer], ah sir [I am] sorry, please give me a chance” (我一時衝動先會打警察，呀sir 對唔住，比次機會我). The alleged oral confession was later recorded in writing. After trial, the court found the Defendant only had a bare case to answer in the special issue proceeding (viz a proceeding determining the admissibility of confessions) and ruled the alleged oral and written confession inadmissible. After ruling out the confessions, the Magistrate further found that the Defendant only had a bare case to answer in the general issue, and subsequently acquitted him.

Prior to the commencement of the trial, the Defendant argued that the Magistracy has no jurisdiction to hear the case as the charge sheet was filed in the Magistracy almost 8 months after the Appeal Committee of the Court of Final Appeal dismissed the Defendant’s application for leave to appeal against the retrial order (“the Time Bar Application”). s 26 of the Magistrates Ordinance (Cap 227) mandates all complaints (other than an indictable offence) must be within 6 months after the matter of such complaint arose. It was argued on the Defendant’s behalf that a retrial is a fortiori and must take place as soon as practicable and, in any event, not more than the time limit applicable to a trial at first instance, otherwise a retrial of a summary offence could take place indefinitely. In other jurisdictions, namely, the England and Wales, the indictment of the retrial must be filed within 2 months from the date of the order for retrial: s 8 Criminal Appeal Act 1968. Magistrate Edward Wong refused the Defendant’s application and held that the case was not time barred as s 26 of the Magistrates Ordinance only governs trial at first instance. The case was then fixed before Magistrate Daniel Tang for a 9-day trial.

In awarding the Defendant’s costs, Magistrate Daniel Tang considered that it was not unreasonable for the Defendant to make the Time Bar Application. The court also awarded costs of the trial to the Defendant.

Simon So represented the defendant in the Time Bar Application and the re-trial as sole advocate. Simon had represented the Defendant in his appeal against conviction before Barnes J: [2021] HKCFI 2893; and his application for leave to appeal against the retrial order before the Appeal Committee (Ribeiro and Lam PJJ, Bokhary NPJ): FAMC 30/2021, both as sole advocate.