HKSAR v. Khan Faisal

HCMA 373/2024

[2026] HKCFI 3436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 373 OF 2024

(ON APPEAL FROM KCCC 460 OF 2024)

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J U D G M E N T

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Introduction

1.The Appellant was charged with an offence of “dangerous driving”, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374. He was acquitted after the trial and thereafter applied for costs. The prosecution opposed the application but accepted fault on the part of the police for the delay in getting the certified translation of the transcript of two video-recorded interviews (“VRIs”), which led to the adjournment of the trial originally set down for 11 June 2024. The magistrate refused to award costs to the Appellant except for the hearing on 11 June 2024, to be taxed if not agreed.

2.The Appellant appeals against the costs order. He was represented by Mr William Allan in the court below. Subsequently, Mr William Allan filed the Appellant’s written submissions with the court. One day before the appeal hearing, the instructing solicitors informed this court that Mr Allan had to travel to England on an emergency basis. Therefore, the Appellant was represented by Mr Charles Chan at the appeal hearing.

Prosecution Case

3.By reference to the Appeal Bundle[1] (“AB”), the Respondent prepared a summary of the prosecution case as follows.

4.At the trial, the prosecution did not call any witnesses[2]. The incident occurred at around 8:48 p.m. on 17 September 2023 along Ferry Street near the junction of Jordan Road. The incident was captured by the car camera of a police vehicle (Exhibit P3). The car camera footage showed three private vehicles on the first left lane before the traffic lights. The subject vehicle, GP8892, was second in line. GP8892 subsequently turned left into a road and ran through three sets of red traffic lights before eventually getting away[3].

5.On 21 September 2023, a police officer spotted GP8892 parked on a street in Yau Ma Tei. The Appellant was located in the vicinity and he had the key to the vehicle in his possession[4].

6.The Appellant was arrested. Under caution, he admitted in the VRIs that he borrowed the car from his friend and that it had been in his possession since 15 September 2023[5].

Defence Case

7.The Appellant elected not to give evidence and did not call any witnesses. He did not dispute that the incident took place on 17 September 2023 and confirmed the voluntariness and accuracy of both VRIs.

8.The main issue in dispute was the identity of the driver. It was submitted that there was no evidence to prove that the Appellant was the driver at the time of the incident[6].

The Magistrate’s Findings

9.In acquitting the Appellant, the magistrate stated[7]:

“8. The only evidence linking the Defendant to the incident is his own admissions in both VRIs (P1B Counter 152-155 and P2B Counter 116-140). He admitted borrowing the subject vehicle since 15^th September. In addition, the Defendant was spotted with the subject vehicle by the police with the car key in his possession on 21^st September. It seems to suggest that the Defendant was in control of the subject vehicle between 15^th to 21^st September when the incident took place during the period.

9. Yet I cannot rule out the possibility that the subject vehicle was driven by someone else other that the Defendant at the material time, given there can be more than one car key. Apart from the Defendant’s admissions, there is no other evidence linking the Defendant to the incident. It would be unsafe for me to convict the Defendant solely base on the admissions and his appearance on the date of arrest.

10.In refusing the Appellant’s costs, the magistrate stated[8]:

“11. I reminded myself of the principles laid down by the Court of Final Appeal in Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 in relation to the award of costs. Unless there are positive reasons, an acquitted defendant should not be deprived of his costs. Positive reasons include whether the defendant has brought suspicion on himself, whether his behaviour has misled the prosecution into believing that they have a case stronger than what it actually is, and whether the acquittal was the result of a technicality although there was an overwhelming case against him.

12. Defence also cited HKSAR and Gurung Swatantra HCMA240/ 2020. Unlike the present case, where the Defendant was acquitted after trial and he had made admissions in the VRIs, the charge against the Appellant Gurung Swatantra was withdrawn and he remained silent as to the alleged charge.

13. In any event, I find the Defendant had brought suspicion on himself by his own admissions in the VRIs. He admitted borrowing the subject vehicle from a friend since 15^th September, meaning he has control over the subject vehicle from then onwards. I have not lost sight of the fact that the VRIs were taken in the presence of his legal representative, Mr. William Allan, who was also the defence counsel in the present case. The Defendant could have remained silent throughout the course of the VRIs, just as he did with other questions but he opted to respond (P1B Counter 152-155 and P2B Counter 116-140). Without the admissions, the Prosecution can hardly prosecute the Defendant and bring forth the case to court.

14. Under the circumstances, I refused to award costs to Defence except for the hearing on 11th June 2024, to be taxed if not agreed.”

Grounds of Appeal

11.In gist, the Appellant submitted that the magistrate erred in law in finding that the Appellant had brought suspicion upon himself by admitting that he had borrowed the subject vehicle since 15 September.

12.Mr Chan, Counsel for the Appellant, adopted the written submissions prepared by Mr William Allan. In both written and oral submissions, it was argued whatsoever that the Appellant was not the driver. There were no eye witnesses, no photos or CCTV evidence identifying the driver, and no admissions by the Appellant as to driving the subject vehicle on the material day. The only admission was that he had borrowed the subject vehicle from his friend, Shehzab, and it had been in his possession since 15 September 2023. As to other questions in the VRIs, the Appellant exercised his constitutional right to remain silent. This should not be a reason to refuse his costs following his acquittal.

The Respondent’s Submissions

13.The Respondent submitted that costs should normally follow the acquittal unless there are positive reasons for making a different order. Such reasons circumstances where the defendant’s own conduct has brought suspicion on himself and misled the prosecution into thinking that the case against him is stronger than it really is: Tong Cun Lin[9].

14.The Respondent further submitted that the magistrate correctly set out the governing principles for awarding costs; was fully aware that a court would normally award costs to an acquitted defendant; clearly explained why she found that the Appellant had brought suspicion on himself; and properly distinguished the case of Gurung Swatantra from the present case.

15.In light of these matters, it was submitted that there was no error in the magistrate’s refusal to award costs.

Consideration

16.The Appellant’s ground of appeal was, in substance, no more than a repetition of the submissions made by Mr Allan in the court below.

17.In Tong Cun Lin, the Court of Final Appeal said[10]:

“…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 … The person in the best position to weigh those matters is clearly the judge himself.”

18.I have set out above the magistrate’s reasoning in arriving at her decision to refuse costs. It suffices to say that I have carefully considered the magistrate’s analysis. The magistrate was fully alive to the issues raised. The Appellant had borrowed from his friend the subject vehicle on 15 September, two days before the incident on 17 September. On 21 September, five days after the incident, the police spotted the subject vehicle parked on a street, and the Appellant was found in the vicinity with the car key in his possession. He was then arrested and made the admissions referred to above. Those admissions must be viewed in the context of the circumstances of the case as a whole. In my view, the magistrate was correct, in the exercise of her discretion, to conclude that the Appellant had brought suspicion upon himself. Absent those admissions, the prosecution could hardly have charged the Appellant with the offence of dangerous driving.

19.Upon rehearing[11] of the matter, I affirm the magistrate’s order refusing costs to the Appellant save in respect of the hearing on 11 June 2024, such costs to be taxed if not agreed. Accordingly, the appeal is dismissed.

Mr Lau Chirk Yen Jason, SPP of Department of Justice, for the Respondent

Mr William Allan (for written submissions) and Mr Charles Chan (for hearing), instructed by Mohnani & Associates, for the Appellant