HKSAR v. Ting Kenneth Alan

HCMA 19/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 19 OF 2017

(ON APPEAL FROM ESCC NO 1504 OF 2016)

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JUDGMENT

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1.The Appellant was aggrieved by the costs refusal order made by Deputy Magistrate Jacky Ip Kai-leung (as he then was) (“the Magistrate”)after being acquitted of one count of criminal damage. The Appellant was represented by the same counsel Mr McGowan at trial and in this appeal.

The prosecution case

2.On 9 January 2016, when the taxi driver surnamed Tong (the only prosecution witness) was allowing a few foreigners boarding his taxi outside the Peak Tram Terminus, the Appellant approached the taxi and knocked on the window next to the driver’s seat.  He scolded Tong for refusing him to take the taxi as he claimed that he was the first one to stop the taxi. Tong ignored the Appellant.  From the rear view mirror, Tong saw the Appellant kicking the offside rear fender of the taxi.  He also heard the sound of kicking of the vehicle door.  Tong drove off and was stopped in front of the traffic signal.  The Appellant chased after the taxi and was seen using his hand to slap the boot of the taxi and also kicking the rear lamp of the taxi. Tong got off the taxi and confronted the Appellant.  Tong saw the right rear fender of his taxi damaged.

3.The Appellant elected not to give evidence nor did he have any defence witness.

Grounds of appeal

4.In the perfected grounds of appeal filed on 16 February 2017, Counsel for the Appellant stated the following grounds:

(1)   The Magistrate erred in his interpretation of the principle in Tong Cun Lin and Tsang Wai Ping[1].

(2)   The Magistrate erred in failing to consider, adequately or at all, the merits of the decision to ‘prosecute’ in the light of the evidence and the ‘character’ of PW1.

(3)   The Magistrate erred in utilizing the Appellant’s admission that he had slapped and kicked at the back of the taxi to deprive him of his costs.

(4)   There were no good, solid ‘positive reasons’ for denying the successful Appellant his costs.

Considerations

5.I would treat all the grounds of appeal in one go.

6.There is not much dispute about the law relating to costs in criminal cases.  The principles are well established, and it all depends on how the principles are applied.  The Court of Final Appeal in Tong Cun Lin v HKSAR[2] held that:

“ When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time…it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

7.The Court of Final Appeal further promulgated in Ting James Henry v HKSAR[3] that:

“ It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionaryexercise. 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 conduction 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 are no reasons to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretionis 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’s acquittal by the tribunal of facts.”

8.It is also well accepted that a costs order is a discretionary exercise of power by the trial judge or magistrate.  The cases above mentioned make it clear that the court will look at the conduct of a defendant during the investigation and at the trial.  The court will not just simply look at the outcome of the trial.

9.The Magistrate in his Reasons for Decision on Costs listed out his ‘Directions’[4] as if the Appellant was still on trial.  The ‘Directions’ if any, in my view, should confine to the issues of costs at that very stage.  The Magistrate did consider the legal principles in cases Tong Cun Lin[5], Hui Yui Sang[6] and Ting James Henry[7].  The Magistrate said that he “noticed while there were loud sounds of slapping and kicking of the boot and back of the taxi, there was a lack of sound of kicking of the offside rear fender.”[8]  While the Magistrate said he “acquitted the Defendant because Mr Tong’s evidence, which was crucial to the Prosecution case, could not be relied upon”, it was:

“ undisputed that the Defendant did slap the boot and kick the rearlamp of the taxi at the material time. The CCTV footage clearly showed that he did these acts when he was following the taxi. The Defendant himself also admitted … that he ‘used his hand to hit the boot for one or two times’ and ‘kicked or nearly kicked the back of the car when it was starting to move’ after asking the taxi to stop.”[9]

The Magistrate was of the view that “the Defendant’s unruly conduct at the time had certainly brought suspicion upon himself.”[10]  And the Magistrate reiterated that “there was ample evidence that the Defendant was acting in a manner which brought suspicion upon himself.”[11]  The Magistrate further spent a few paragraphs on the issue of the costs relating to the second day of the trial.[12]

10.In my view, it is clear that the Appellant had brought suspicion on him and the Magistrate was entitled not to grant costs in favour of the Appellant.

Conclusion

11.There is no merit in this appeal, and accordingly the appeal is dismissed.

Ms Irene Fan, SPP of the Department of Justice, for the Respondent

Mr James H M McGowan, instructed by Vidler & Co, for the Appellant