HKSAR v. Nwc

HCMA 336/2017

[2018] HKCFI 786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 336 OF 2017

(ON APPEAL FROM FLCC NO 286 OF 2017)

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J U D G M E N T

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Introduction

1.The appellant was charged with one count of “attempting to mislead police officer by false information”, contrary to section 63 of the Police Force Ordinance, Cap 232 of the Laws of Hong Kong.  She pleaded not guilty and was acquitted after by trial by Ms Stephanie Tsui (“the magistrate”).  The appellant applied for costs but the prosecution opposed the application.  In the end, the magistrate refused to award costs to the appellant.  She appealed against the order.

The facts

2.The particulars of the offence is that the appellant attempted to mislead a woman police constable 56306 (PW2) during the investigation by giving false information in that she was almost hit by a private car MN 8313 near lamppost DE 3034, No 9 Fung Yuen Road, Tai Po on 10 August 2016 with intent to defeat the ends of justice.

3.The prosecution case was mainly dependent on PW1, the driver of the private car MN 8313, PW2 and a CCTV video recording (Exhibit P3).  The magistrate sets out the facts of the case in her statement of finding:

“ 8. PW1 gave evidence that he parked his car in front of the clubhouse of the housing estate on the section of the road for pedestrians where there was no railing. When he got out of his car, the defendant was already standing in front of him, accusing him of parking his car at that spot thus obstructing her going onto the pavement. She said she would complain against PW1. She also expressed her displeasure at the fact that vehicles of the housing estate often parked there. PW1 took no notice of her. The defendant followed behind PW1 and scolded him all the way even after he went into the clubhouse. In the course of her doing so, there was exchange of words between the two of them, and the defendant complained to the staff members in the clubhouse about PW1’s parking his car at that spot. When PW1 went out of the clubhouse, the defendant continued to follow behind him and scold him, and she claimed that she would definitely find out at which unit he lived. PW1 got into his car and when he was driving away, he saw that the defendant took photographs of his car.

9. PW2 was WPC 56306, who took follow up action in response to a telephone complaint made by the defendant. On 31 August 2016 she took a witness statement from the defendant, the contents of which, according to PW2, was provided by the defendant. PW2 explained to the defendant and asked her to sign a certificate which confirmed that the contents of the statement were true and stated that otherwise, she might have criminal liability.

10. The defendant told PW2 that when she reached Fung Yuen Road on foot and was about to cross the road at Mount Vert, on the safety island she saw that on the right inside the gate entrance there was a car which was getting ready to come out from the gate entrance. Seeing that the car was some distance away from her, she stepped out and got onto the roadway. When she walked about two meters on the roadway, the car at the gate entrance suddenly appeared on her left, moving past her quickly. She stopped walking immediately. The car came to a halt in front of her. The position where it stopped was right at the gap at which she crossed the road. The defendant was frightened. She argued with PW1 and subsequently made a complaint. PW2 confirmed that the defendant had never said that at the time of the alleged offence her eyesight was impaired, nor had she mentioned that when she was making her witness statement her eyesight was impaired.

11. Prosecution exhibit P2 showed that at 12:09:38 PW1 drove his private car out of the exit of the carpark.  At that moment, in the recording there was no sign of the presence of the defendant.  At 12:09:44 PW1 drove past the safety island and stopped his car in front of the clubhouse.  It was only at 12:09:48 that the defendant, who was on the opposite side of the road, stepped onto the roadway and crossed the road.  In the course of the defendant’s crossing the road, PW1’s car remained at its parking position without moving at all.”

Reasons for finding the appellant not guilty

4.The magistrate found that both PW1 and PW2 were honest and reliable witnesses.  The video footage from the CCTV (Exhibit P3) clearly showed that at the time when PW1 drove his car out from the gate, the appellant was not present at the scene.  It was only after PW1 drove his car past where the safety island was and after he stopped the car that the appellant was seen stepping out from the opposite side of the road.  The footage showed that at that moment PW1’s car remained at its parking position.  It follows that what the appellant said, namely, after she stepped out and walked two meters she saw that PW1’s car was driven past her at a rather high speed, was markedly different from the image depicted in footage and did not represent the truth.

5.The magistrate however found that she could not be sure that   the appellant’s complaint to PW2 was not affected by her judgment which might be caused by her eye disease, as testified by Dr. Lee Wai-yip, Jacky (DW3), a specialist in Ophthalmology: -

“ 26. As for the issue of whether the defendant, because of her visual impairment, might have made mistakes in her judgment when she was observing the events, the defence relied on the evidence of DW2 and DW3. DW3 gave evidence in the capacity of an ophthalmologist. The prosecution did not dispute his professional qualifications. DW3 stated in defence exhibit D1 and testified in court that the defendant was suffering from congenital macular epiretinal membrane disease, and that at the material time she had cataract. The defendant had only visual acuity of light perception in her right eye and visual acuity of 60% in her left eye. When DW3 viewed the closed circuit TV footage, he saw that the defendant reacted in a certain way when PW1 opened the car door, and he opined that such act of movement might have caused the defendant to make mistakes in the ‘perceptual filling-in’ process.

27. The video footage showed that when PW1 opened the car door, it was several seconds after the car became stationary, and only then did the defendant reached somewhere near the car on foot.  That was inconsistent with her complaint and was really suspicious.  However, taking into account the impairment of the defendant’s eyesight caused by her eye diseases, I was not sure whether at the material time she was affected by her eye diseases, I therefore found her not guilty.”

Reasons for refusing costs

6.The magistrate referred herself to the principles of awarding costs following an acquittal in Tong Cun Lin v HKSAR [2000] 1 HKLRD 113 and HKSAR v Li Siu Tong & Others HCMA 547/2000 and found the appellant had brought suspicion upon herself.  She concluded that it was the appellant who made the ‘false’ complaint against PW1 and she voluntarily signed her witness statement and verified its contents as true before PW2 at the police station.  During the statement taking, the appellant had never disclosed to PW2 the fact or extent of her visual impairment.  On the contrary, she told PW2 that she saw PW1’s car being driven past her in a rather high speed.  On the basis of the appellant’s complaint, PW2 conducted her investigation.  The magistrate was of the view that had PW2 been informed by the appellant about her visual impairment, that would have considerable influence on how the police would handle her complaint.  She took into account of the appellant’s conduct and considered that they were actions directly surrounding the alleged criminal conduct.  For these reasons, she refused the defence’s application for costs.

Grounds of appeal

7.The appellant was represented by counsel during the trial but she was unrepresented when the verdict was delivered and she applied for costs for her defence after the acquittal but was refused.  She chose to appear in person in the present appeal before me.  The trial was originally conducted in Chinese but before the hearing, the appellant wrote to apply to use English to conduct her appeal as she said she was more comfortable using English in her written submissions as she had great difficulty in reading Chinese characters with her eyesight albeit she had studied Chinese until Form 5 in the secondary school.  The application was finally granted and I ordered the written decision by the magistrate on costs be also translated into English for her benefit.

8.During the hearing, the appellant put forward a number of appeal grounds such as malicious prosecution by the police on the ground of her disability, magistrate not independent and impartial throughout the trial and visual interpretation or audio description of the CCTV recordings denied etc., but essentially, the principal ground of appeal which deserves my consideration is that the magistrate erred in holding that the appellant  had brought suspicion upon herself by not telling PW2 that her eyesight was impaired at the time of the alleged incident or at the time when she was making the witness statement when the magistrate acquitted the appellant on the basis that her visual impairment might have affected her judgment when she was observing the events.

9.The appellant emphasized that what she told PW2 when the statement was taken from her was just an honest estimation of what had happened with her limited eyesight compensated with other senses.  As she was finally acquitted on the basis, as found by the magistrate, that her judgment might be affected as she could not see clearly what happened in the incident, she did not give false information to PW2 and there was no bad motive or ill-intention on her part to falsely accuse PW1 and mislead PW2.  She questioned the logic of the magistrate in refusing her costs just because her version of events did not conform with the CCTV video recordings.  The ruling by the magistrate is tantamount to say that she should never have reported to police as she would always be at fault and bringing suspicion upon herself because of her visual impairment. According to her, this is unfair to her and amounts to an indirect discrimination.

10.In the Notice of Appeal, the appellant also pointed out that the prosecution failed to consider the letter from the defence to the Department of Justice dated 23 February 2017 requesting for considering “O.N.E/Bind over” enclosing three medical reports on her eye diseases by DW3 but the said offer was flatly turned down by the prosecution.

Respondent’s reply

11.Mr. Eddie Sean, SADDP, acting for the respondent, submitted that this appeal is without merit.  The magistrate considered the relevant legal principles and applied such correctly.  She took into account all the relevant facts and exercised her judicial discretion correctly.  It was a finding of fact on the part of the magistrate and the fact that the prosecution refused to accede to the request for “O.N.E/Bind over” has nothing to do with the refusal of costs order by the magistrate.

The relevant legal principles

12.Section 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap. 492 states that where a magistrate dealing with any offence summarily acquits the defendant, the magistrate may order that costs be awarded to the defendant.  The Ordinance states that the magistrate may make the aforesaid order.  The magistrate therefore has the discretion to decide whether or not to make the aforesaid order.

13.The Court of Final Appeal laid down and described in details the relevant principles of awarding costs in Tong Cun Lin v HKSAR [1]. The Court of Final Appeal once again affirmed the relevant principles in Hui Yui Sang v HKSAR [2].

14.The general basic principle is that in the absence of positive reasons to deprive him of his costs, an acquitted defendant should be awarded costs.  Positive reasons include whether the defendant had brought suspicion on himself, whether his behaviour had misled the prosecution into believing that they had a case stronger than what it actually was, and whether or not there was an overwhelming case against him and the acquittal was the result of a technicality etc.

15.Litton PJ said as follows in Tong Cun Lin:

“ …. 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. Since, however, the discretion is being exercised in the context of an acquittal—the averments constituting the charges having been found by the jury as not amounting to the crimes alleged—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.”

16.Further, generally speaking, unless the trial judge has taken into account matter that he should not have taken into account, an appellate court will not interfere lightly with the exercise of discretion by the judge (537C of Tong Cun Lin).

17.In Ting James Henry [3], the Court of Final Appeal pointed out:

“ 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 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 charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”

Discussion

18.By criticizing the appellant for her failure to inform PW2 of her visual impairment at the time of the alleged incident or at the time when she gave statement, the magistrate was in fact exercising her discretion by adopting a position at variance with her reason to acquit the appellant.

19.I say this because although the magistrate found that the appellant was not an honest and reliable witness, she came to the conclusion that the prosecution still failed to prove its case as she was not sure, after taking into account the impairment of the appellant’s eyesight caused by her eye disease as testified by DW3, whether her perception and judgment of the event was affected by her eye diseases.

20.Based on the reasons for acquittal, it must follow that the magistrate came to the decision that the appellant was still entitled to her own “views” and beliefs and report to the police on what had happened to her on the alleged incident albeit she knew there was problems with her eye-sight because her judgment might have been affected.  Otherwise, the appellant should still be convicted despite this finding.

21.In my judgment, it would be inconsistent with the rationale of the acquittal if the magistrate now refuses to award costs to the appellant just because she failed to inform PW2 about her visual impairment and thereby said to be bringing suspicion upon herself.

22.In the present case,upon closer analysis of the magistrate’s reason for her refusal to award costs to the appellant, what she was trying to say was that if the appellant had told PW2 of her visual impairment, it would have considerable influence on how the police would have handled the complaint. One possible line of thinking is that it may well have been that the police would not have charged her and brought her to the court.  With respect, there is no basis for that assumption or conclusion and in the contrary, one must not forget that the appellant’s lawyer has already disclosed in details, by way of three medical reports of the appellant’s visual impairment, to the prosecution even before the trial for the purpose of plea-bargaining but the prosecution did not seize the opportunity to re-consider the strength of the evidence so that the appellant could not fairly be said to have misled the prosecution into thinking that they have a stronger case to proceed against the appellant.   

23.In other words, the appellant was not acquitted on a defence that was based on matters only known to her.  It is apparent from the magistrate’s finding that the appellant was acquitted as she was not satisfied beyond a reasonable doubt that the appellant’s judgment was not affected by her eye-diseases as exactly disclosed and supported by those three medical reports which were already within the knowledge of the prosecution even before the trial.  During the trial, neither was the medical evidence of DW2 challenged by the prosecution nor did the prosecution call upon their own expert to testify in reply.  Based on the reason of the acquittal, despite the adverse findings against the appellant by the magistrate, the prosecution case was inherently weak and the prosecution has not discharged the burden and failed to prove whether the appellant knew or believed she was making a false claim and thereby misleading the police. Based on the reasons of the acquittal, it would also seem that the whole trial was unnecessary and the costs occasioned by the defence could have be avoided if the prosecution took the same view of the magistrate on the medical reports submitted and accepted the offer by the defence to dispose the matter without a trial.

24.For the above reasons, I disagree with the respondent who submitted that there was clear evidence before the magistrate for her to conclude that the appellant had in fact brought suspicion upon herself.  

25.Accordingly, I will allow this appeal to award costs of the trial to the appellant to be taxed, and I also award the appellant her costs of this appeal to be taxed, if not agreed.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

The appellant appeared in person