HKSAR v. Adil Muhammad

HCMA 396/2020

[2022] HKCFI 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 396 OF 2020

(ON APPEAL FROM KCS 502746 OF 2020)

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BETWEEN

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Before:  Hon D’Almada Remedios J in Court

Date of Hearing:  21 June 2021

Date of Submissions of the Appellant:  29 October 2021

Date of Submissions of the Respondent:  23 November 2021

Date of Ruling on Costs:  11 February 2022

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RULING ON COSTS

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1.On 19 October 2021 I allowed the appellant’s appeal against conviction for the offence of careless driving and set aside the sentence[1]. I made an order nisi that the respondent pay the costs of the appellant’s appeal and that such costs to be taxed if not agreed and directed submissions to be lodged should any party seek a different order as to costs[2].

2.In accordance with the order, the appellant made an application for costs for the trial.  The respondent does not oppose the order granting of costs to the appellant in the appeal but opposes the application for costs for the trial.

3.Both parties have lodged their written submissions requesting and opposing costs for the trial.  I have carefully considered those submissions.

4.By virtue of Section 120(1)(a), Magistrates Ordinance, Cap. 227 where the court allows an appeal it may order that costs for the trial be awarded to the defendant.

5.The exercise of the power to award costs is at the unfettered discretion of the court and falls to be exercised in the light of the circumstances of each case.  The normal practice is that an order should be made unless there are positive reasons for not making such an order, including (i)  where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; or (ii)  where there is ample evidence to support a conviction but it was quashed on a technicality which has no merit.  See HKSAR v Chan Hing Kai (No. 2) [2020] 2 HKLRD 367 at paras. 3, 5 and 6.

6.The respondent opposes the appellant’s application because the appellant had brought suspicion upon himself on the following basis:-

a.  The appellant was the driver of the motorcycle at the offence location at the material time.

b.  PW1, PW2 and 2 others were crossing the pedestrian crossing when the appellant’s motorcycle approached them.

c.  The appellant stopped his motorcycle near PW1, PW2 and the 2 others in the road and had a heated argument with them.

d.  The appellant then drove off.

7.In support of the appellant’s application for costs the appellant argued that the trial judge simply had no factual basis to convict the appellant of careless driving because the prosecution witnesses evidence showed discrepancies and were unreliable.  The appellant did not bring any suspicion upon himself, or have the prosecution believe that their case was stronger than it was and/or related to being acquitted on a technicality.

Discussion

8.At the trial, the appellant was charged with the offence of dangerous driving.  After hearing the evidence, the magistrate convicted the appellant of careless driving.  The magistrate found that the appellant’s driving manner was careless when the appellant drove away from the scene at high speed between a gap formed by the prosecution witnesses.

9.In the present case there was simply no evidence of the route the appellant had left the scene nor of his manner of driving when he did so[3]. In the circumstances, the appellant had not brought suspicion upon himself nor have the prosecution believe their case was stronger than it was.  The appellant’s application for costs of the trial is allowed.

10.I order that the appellant have his costs of his trial to be taxed, if not agreed.

Ms Rosa Lo, SPP of the Department of Justice, for the respondent

Mr Andrew C.H.Y. Leung instructed by Chaudhry Solicitors, for the appellant