Yew Hua Yee William v. The Queen

CACC000341/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 341 OF 1969

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Coram: Williams, J.

Date of Judgment: 2 June 1969

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JUDGMENT

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1. The appellant was convicted for causing to be on a road a motor vehicle from which the emission of smoke was such as to be likely to cause annoyance contrary to Reg. 106 and 189 of the a Road Traffic (Construction and Use (Construction and Use) Regulation, Cap. 220. He was fined $400 and ordered to pay$100 as costs and he appeals against the severity of the fine and the order for costs.

2. In passing sentence the magistrate referred to it as a bad case and there was evidence to support that view. He also said that the appellant - "had made it quite apparent that he had no intention of ensuring that there would be no recurrence of such an offence". There is nothing whatever in the record to support such a statement which, if it were true, would justify the imposition of a severe penalty.

3. He also stated that the appellant "had no regret whatever over the incident". Unfortunately the record discloses absolutely no justification for such a statement.

4. Another of the magistrate's reasons for sentence was that the accused had nothing to say in mitigation and had put forward no defence beyond the fact that the vehicle was checked in October 1968 and found to be satisfactory. The appellant appeared in person at his trial and his defence was really an explanation that the motor lorry was purchased new as recently as March 1968 with a guaranteed service at 500 miles and 10,000 miles. It would seem that the accused was submitting that he had scarcely had time to neglect6 that motor lorry prior to the date of the offence - 1st November 1968. He said he had had it checked in October 1968 and understood it to be in good order. It was not so much a defence as an explanation of mitigating features. In the light of that defence it was not open to the magistrate to say that no mitigation had been tendered. He may have disbelieved the appellant's explanation, but he did not say so.

5. The magistrate's reasons for imposing a severe sentence were accordingly not supported by his record and I must take the view that such a severe penalty was not merited.

6. Regarding the order for costs Mr. Gunston for the appellant submitted that the record should show that costs had been incurred. He referred to Pang Yuk-shan v. The Queen⁽¹⁾ concerning an appeal against an order to pay $30 costs. In that particular case the magistrate had given his reasons for making the order. Huggins J. observed that since there was a discretionary power rested in the magistrate to make such an order, and since a prosecution was bound to cost something he was not prepared to take the view that the power had been wrongly exercised.

7. In R. v. Kwan Ping⁽²⁾, the accused appealed against an order to pay $150 costs or one month in lieu. In quashing that order Briggs J. noted that there is no power to award a fixed term of imprisonment in default of payment of costs. He gave a further reason, which is of interest in this case, for quashing the order. He said that the magistrate had made the order because the accused had no bona fide defence, and pointed out that all accuseds had a right to plead innocence and an accused was not to be penalized in costs because he exercised his legal rights. The learned judge remarked at p.22 that he could have understood the making of an order for costs had the accused embarked on a defence which caused needless expenditure to the prosecution e.g. investigation of a false alibi.

8. The award of costs is a means of reimbursing a successful complainant or informant wholly or in part for the expense incurred in presenting and proving his case. Magistrates have an unfettered discretion in the awarding of costs, and they should exercise it whenever the occasion demands.

9. When an order for costs is made a magistrate is exercising his discretion and the record should show a judicial as opposed to a purely arbitrary approach. As Briggs J. said at p.23 (above):

"What must be considered before such an order is made is, is it a proper case for compensating the complainant or informant."

10. The record in these proceedings contains no reasons put forward by the magistrate as to why he had considered it to be a proper case for ordering costs.

11. For the foregoing reasons the fine is reduced to $150 and the order to pay costs is quashed.

2nd June, 1969.

Representation:

D.B. Gunston for Appellant.

M.J. Alexander C.C. for Respondent.

(1) 1963 H.K.L.R. 373

(2) 1966 H.K.L.R. 20