HKSAR v. Chow Ka Wing

HCMA 202/2018

[2018] HKCFI 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 202 OF 2018

(ON APPEAL FROM KCS 40426 OF 2017)

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Before: Deputy High Court Judge Gary Lam in Court

Date of Hearing: 17 August 2018

Date of Judgment: 5 September 2018

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J U D G M E N T

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1.The appellant was found not guilty of an offence of “Carelessdriving” by Deputy Magistrate Kestrel Lam (“the magistrate”). He applied for costs following his acquittal, but the magistrate refused his application.

2.The appellant now appeals against the magistrate’s decision to refuse his application for costs.

3.The appellant is represented by the same counsel, Mr Marwah, both at trial and in this appeal.

The trial

4.For the purpose of this appeal, I need not go into great details of the evidence.  In gist, the prosecution’s case relied solely on the evidence of Mr Chio (PW1) and the footage of his car camera (Exhibit P1).  Similarly, the defence case depended solely on the appellant’s evidence and the footage of his car camera (Exhibit D1).

5.According to PW1, he was driving his private car TD 9569 (“Car 1”) along the 4^th lane (counting from the left) along Kwun Tong Bypass (eastbound direction).  Shortly before the incident in question, PW1moved from the 4^th lane to the 3^rd. Shortly after that, a minibus appeared on the 2^nd lane, which was slightly ahead of Car 1.  Suddenly, the appellant drove his private car KA 1211 (“Car 2”) through the space between Car 1 and the minibus at a high speed [1].

6.The appellant’s version was that he was driving Car 2 up the ramp to Kwun Tong Bypass from Cha Kwo Ling Road.  He started on the 1^st lane of Kwun Tong Bypass (eastbound direction) and gradually moved towards the 3^rd (lane by lane) following proper lane changing procedures. As the appellant was about to move into the 3^rdlane, Car 1 suddenly movedinto the 3^rdlane from the 4^th.  The appellant explained in court that he couldnot slow down because he noticed from the rear view mirror that there was a vehicle behind Car 2 in very short distance.  He could not steer Car 2 to the left to avoid Car 1 because there were vehicles on his left.  The appellant saw a space in front.  He therefore decided to speed up and drovepast Car 1 through that space.  Exhibit D1 confirmed the appellant’s version and it was played to PW1 during cross-examination.

7.Have heard the stories of both sides, the magistrate did not find PW1 a reliable or truthful witness.  He formed the view that PW1’s evidence was completely contradicted by the footage in Exhibit D1. The magistrate concluded with these remarks in his Statement of Findings [2] :

“ 48. I could not rule out the possibility that KA1211 [ie Car 2]was, as Defence Counsel submitted, boxed and as the Defendant explained, the only safe place for him to leave all the danger in that split second was the gap/space in front of KA1211 in between TD9569 [ie Car 1] and the minibus.

49. Defence Counsel submitted that speeding up was, in certain situations, the best or a necessary way to avoid a collision from behind or the side if there was room to the front.  I agreed.”

The magistrate’s decision on costs

8.The magistrate refused the appellant’s application for costs and he gave his reasons [3] as follows:

“ 60. In this case, the Prosecution placed total reliance on the evidence of PW1, their sole witness, and the video footage provided by PW1, namely P1. As I indicated above, I held the view that on the face of P1, the driving manner of the Defendant at the material time was highly unreasonable or suspicious.

61. By producing D1 in support of his defence, the Defendant not only showed that P1 was incomplete and to an extent misleading, he also put forward a good and valid explanation or justification for his driving manner at the material time. Havingperused D1, I came to the conclusion that the Defendant did havea valid explanation or justification for his seemingly unreasonable driving manner.

62. Likewise, as I indicated above, the evidence of PW1 was shown to be unreliable or untruthful by D1, which formed the sole basis of this court refusing to accept the evidence of PW1.

63. Simply put, the production of D1 destroyed the two planks of the Prosecution’s case and was crucial to my verdict to acquit the Defendant of the Charge.

64. Whilst I fully appreciated and repeatedly reminded myself that the Defendant had the constitutional right to remain silent and had no absolutely no duty to disclose his defence or offer any explanation for what happened, I was of the view that by choosing not to disclose D1 (of which the Defendant was the only one aware) until the middle of the trial, the Defendant had neglected to bring a highly material and relevant explanation forward in an early and appropriate manner, thereby bringing suspicions upon himself or misled the Prosecution into thinking that the case against him was stronger than it actually was. Had D1 been brought to the attention of the Prosecution in an early and appropriate manner, the Prosecution would likely have come to the conclusion that the Defendant had a good and valid explanation for his driving manner and that the evidence to be given by PW1 was unreliable and unsustainable.

65. Under all these circumstances, I found that the Defendant had brought suspicions upon himself or misled the Prosecution into thinking that the case against him was stronger than it actually was.  There were positive reasons for me to exercise mydiscretion to deny the Defendant his costs in spite of his acquittal.  Accordingly, the Defendant’s application for costs was refused.”

Grounds of appeal

9.Mr Marwah advanced the following four grounds of appeal:

Ground 1: The magistrate erred in holding that the appellant brought suspicion upon himself or misled the prosecution into thinkingthe case against him was stronger than it was by not providing the dashcam footage D1 to the prosecution prior to the trial, when the appellant had an absolute right to silence and had no obligation to provide the footage.

Ground 2: The magistrate erred in principle in failing to give due regard to the appellant’s right to silence and failed to consider whether the appellant had acted reasonably in not providing the dashcam footage D1 prior to the trial.

Ground 3: The magistrate gave undue importance to D1, and wrongly held that it provided a good and valid explanation for the appellant’s driving, and wrongly held that it destroyed the prosecution’s case based on the dashcam footage P1, when it did not contradict P1, and it was the appellant’s oral evidence completing the picture that he was boxed in on the left and rear that was crucial to his acquittal.

Ground 4: The magistrate wrongly held that had D1 been provided earlier the prosecution would have considered the appellant had a good and valid explanation for his driving, when there was no basis for that finding.

10.In the appeal hearing, Mr Marwah supplemented that in the present case, it was reasonable for the appellant to withhold Exhibit D1 prior to the cross-examination of PW1 because the footage does not completely exonerate him.  He could have still been convicted of “Careless driving” based on the footage contained in Exhibit D1 because the magistrate ruled that there was a case to answer despite having viewed the footage.

11.Furthermore, Mr Marwah submitted that the appellant’s acquittal was brought about by his evidence (rather than Exhibit D1), explaining to the magistrate what really happened during the incident and why he drove in the manner he did.

12.Mr Marwah also submitted that disclosing Exhibit D1 to the prosecution before trial would have prejudiced the appellant’s case because the prosecution could have forewarned PW1 of what the footage shows and he could have tailored his evidence accordingly.  Mr Marwah explained further that not until having heard PW1’s evidence in court, it was uncertain, in his opinion as defence counsel, that Exhibit D1 could effectively impeach PW1.

My considerations

13.Grounds 1 to 4 are intertwined.  I will deal with them together.

14.Regarding the battle between the constitutional right of silence of an accused and the refusal of costs on the basis of non-disclosure of his defence, A Cheung J (as he then was) in Cheng Kam Kuen v HKSAR HCAL 92/2004, held:

“ 27.  Both on first principles and authorities, I totally agree that the right of silence is a fundamental part of the common law and the criminal law (I include here the absence of any affirmative duty of disclosure of the defence prior to trial—indeedan accused may choose to keep silent even at trial and simply putthe prosecution to proof of its case).  The right must be jealously guarded.  It cannot be taken away or watered down, whether in form or in content, and whether directly or indirectly.  This has been recently reaffirmed by the Court of Final Appeal in Lee Fuk Hing v. HKSAR [2005] 1 HKLRD 349. 

28.  However, this does not mean that under no circumstances can the refusal or failure to disclose one’s defence or proffer an explanation at the investigation stage, done in the exercise of theright of silence, be taken into account by the court in consideringcosts following an acquittal.  The Court of Appeal in Kwok Moon-yan, supra, has said so in terms.  The Australian cases have bothexplained why and demonstrated in what circumstances this may be done.  Quite apart from the fact that Kwok Moon-yan as a decision of the Court of Appeal is binding on this Court, I agree with the conclusion that has been reached in these authorities.”

On the issue of the causal connection between the non-disclosure of defence and the subsequent acquittal, his Lordship held:

“ 36.  As a matter of principle, if there really was no causal connection between the refusal or failure to explain or non-disclosure (in the exercise of the right of silence) and the prosecution and/or the attendant costs in a particular case, then as presently advised, I see no justification whatsoever for taking the refusal or failure to explain or non-disclosure into account. 

37.  This is so, however, not so much because one is concerned with a refusal or failure to explain or non-disclosure in the exercise of the right of silence, but rather that that fact has no factual relevance to the matter under consideration and should not be taken into account; in other words, it is a factuallyirrelevant consideration to the exercise of discretion in question.” 

15.In Koo Kwok Yee v Secretary for Justice [2011] 6 HKC 345, Au J held [4] :

“ 32.  Mr Lam further submits that the Decision is still wrong in law in that (a) remaining silent per se is not an indication of bringing suspicion upon oneself, and (b) there is in any event no causal connection in the present case between the acquittal and the exercise of right to silence.

33.  With respect, I am also not persuaded by these submissions. 

34.  First, there are cases where the trial judge is entitled to conclude that remaining silent itself constitutes a reason or the reason for bringing suspicion upon oneself for the purpose of considering costs.  This depends on the particular circumstances of each case. …

…

36.  Whether this is so in a particular case is a matter for the trial judge, who is the person in the best position to decide once he has correctly identified the applicable legal principles.”

16.Notwithstanding the decisions in Cheng Kam Kuen and Koo Kwok Yee mentioned above (as well as the number of authorities thoroughly analyzed by their Lordships in their respective judgments), Mr Marwah relied on HKSAR v Tsang Chun Chiu William HCMA 403/2002 [5] to supporthis argument that the mere fact that a defendant in a criminal trial does not reveal his defence to the prosecuting authorities prior to trial should not disentitle him to his costs if he is subsequently acquitted on the merits of that defence [6] .

17.With due respect, his Lordship in Tsang Chun Chiu William also held:

“ 12.  Additionally, it may well be that on occasion a successfuldefence on the merits will still not entitle a defendant to costs even in circumstances where the defendant has simply relied on his rights throughout the case.  It may be, in that regard, for example, that there is so obvious an explanation for the prosecution case, which is known only to the defendant, that for him to say or do nothing amounts effectively to him deliberately allowing the prosecution to go off on a wild goose chase, where revealing his defence would, at no risk to his own rights or interests, prevent that from happening.  But in those circumstances, the defendant’s inaction could fairly be regarded as being for reasons other than the reasonable conduct of his case.”    (Emphasis added)

18.Mr Cheung, counsel for the respondent, has helpfully arrangedto play both Exhibits P1 and D1 in court for my benefit.  Mr Cheung ended his submissions by saying “A picture speaks a thousand words.”  I agree with him.  I would add to his sentence “And a video shows a thousand pictures.”

19.Setting aside the evidence of PW1 and the appellant for a moment, the footage contained in Exhibit D1 alone clearly shows that Car 2was “boxed” between Car 1 and the minibus; whereas the only way for thedriver of Car 2 to get out of that predicament was to seize the space in front and speed up.  The footage also shows that it was Car 1 which was improperly steered into the 3^rd lane from the 4^th. I agree entirely with the magistrate’s finding “It was clear that PW1 was either not paying due attention to the traffic around him at the material time or was lying about what [sic] happened.” [7]

20.The appellant surely had the right to keep Exhibit D1 to himselffor various reasons (strategic or otherwise) in order to increase his chances of an acquittal.  On the other hand, when it comes to costs application, the settled legal principle (as stated above) is that the magistrate is entitled to consider the effect of the non-disclosure of a valid, in fact powerful, defence. 

21.Mr Marwah submitted that it took more than just Exhibit D1 to secure an acquittal for the appellant.  He pointed out that the footage in fact shows certain per se “unusual” driving manoeuvres of the appellant, which were prima facie sufficient to support of a conviction of “Careless driving”.  It was the appellant’s evidence in the witness box which explained everything to the magistrate.  I reject this argument.

22.In my view, if Exhibit D1 was not a complete defence for the appellant, it was at least a 90% defence.  In a criminal trial, in order to secure an acquittal, all a defendant had to do was to raise a reasonable doubt in the prosecution’s case.  A 90% defence is more than sufficient to raise a reasonable doubt.  To borrow his Lordship’s words in Tsang Chun Chiu William, Exhibit D1 is “so obvious an explanation for the prosecution case, which [was] known only to [the appellant]”.

23.Assuming PW1 gave his evidence according to his witness statement [8] , it is all too obvious that Exhibit D1 is capable of destroying his credibility (even before he went into the witness box).  Without PW1's evidence, the prosecution’s case would simply collapse.  Furthermore, it was defence counsel’s decision at trial not to make a no case submission and the appellant’s election to give evidence.  The appellant cannot now argue thatadvance disclosure of Exhibit D1 would not have changed the prosecution’sstance.

24.Although we cannot go back in time, I have not a single doubt that had the appellant disclosed Exhibit D1 to the prosecution before trial, it would have re-assessed its position.  And should the prosecution still decideto proceed, it would have to bear the consequences of its decision including costs.  In fact, the prosecution always has an on-going duty to assess the strength of its evidence even during trial.  It made a decision to proceed with the trial against the appellant after the contents of Exhibit D1 came to light.  The consequence of that decision would be paying defence costs from the point of disclosure.

25.Based on the reasons stated above, I allow the appeal, set aside the magistrate’s decision in refusing costs to the appellant, and order that the appellant shall have costs of the trial, but limited to the portion after the contents of Exhibit D1 were revealed to the prosecution, amount to be taxed if not agreed.

26.Counsel for both sides have agreed in principle that costs of this appeal should follow the event.  Since the appellant is partially successful, I make a costs order nisi that the appellant be entitled to 50% of his costs in this appeal, amount to be taxed if not agreed.  Unless either side appliesto vary it, the order nisi shall become absolute 14 days from the date of the handing down of this judgment.

Mr Ivan Cheung, SPP (Ag) of the Department of Justice, for the respondent.

Mr Shaphan Marwah, instructed by S H Chan & Co, for the appellant.