HKSAR v. Au Chi Wai Alan

HCMA001109/1999

HCMA 1109/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1109 OF 1999

(ON APPEAL FROM NKS 16351/1999)

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Coram: Li DJ in Court

Date of Hearing: 11 March 2000

Date of Judgment: 18 April 2000

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J U D G M E N T

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This is an appeal against conviction and costs order. The appellant was convicted of careless driving and ordered to pay costs at $1,000.00 by the North Kowloon Magistracy on 22 October 1999.

2.The perfected grounds of appeal, so far as conviction is concerned, are that

"1. The Learned Magistrate erred in law in convicting the Appellant when she found and accepted that immediately before the accident PW1 was at a position between two stationary vehicles where she could not be seen by the Appellant when overtaking the stationary vehicle.

2. The Learned Magistrate erred in law in convicting the Appellant when there was no positive evidence of carelessness.

3. The Learned Magistrate erred in law in assessing the Appellant's speed by considering the impact on collision and PW1's degree of injury without the assistance of expert evidence.

In all the circumstances, the said conviction is unsafe and unsatisfactory."

3.According to the Statement of Findings by the trial magistrate, a female pedestrian was on the carriageway of Mody Road in Tsim Sha Tsui East next to the exit of a carpark and a passing bay just outside Empire Centre. She was in the process of crossing the road. She saw that there was no vehicular traffic along the straight road coming towards her and so she started to move. When she got to the second lane, a private car driven by the appellant knocked her down. A second prosecution witness, another pedestrian attempting to cross the road from the other side, saw the appellant's car coming out from the Empire Centre carpark or passing bay and then found the said first prosecution witness lying on the dividing line between the first and second lane. Apparently the said two prosecution witnesses stood firm on their evidence in chief despite rigorous cross-examination by the appellant's counsel.

4.The appellant himself gave evidence. He stated under oath that he was travelling along the straight stretch of Mody Road, not out from a carpark or passing bay, at a slow speed of 10 k.p.h. The first prosecution witness suddenly came out onto the carriageway and into the path of the appellant's car.

5.Obviously, since the evidence conflict, the trial magistrate was entitled to reject one version and believe the other. In the light of the strong evidence called by the prosecution, I cannot see how the trial magistrate can be faulted for believing the prosecution case. As to the speed of the appellant's vehicle, there is clear authority to the effect that a trial court may well determine the speed of a travelling vehicle without need to hear expert evidence. See R v. Cheung Shing-wai [1993] 1 HKCLR 311, DPP v. Jordan [1977] A.C. 699 and R v. Turner [1995] 1 Q.B. 834.

6.Bearing in mind as a fact that the appellant's vehicle was coming out from a carpark or passing bay from where he had only a limited view of the carriageway he was turning into and the relatively higher speed at which he was driving, there is clear basis for the trial magistrate to convict the appellant of careless driving. There is no merit in the appeal against conviction at all.

7.The appeal against the costs order, however, gives me some concern. Counsel for the appellant relies on the decision of HKSAR v. Chan Kwok Wah [1999] 1 HKC 697. There the Chief Judge of the High Court sitting alone to hear magisterial appeals held, inter alia, that:-

" (2) The Costs in Criminal Cases Ordinance (Cap 492) did not specify the circumstances under which a magistrate might order a defendant to pay the costs of the prosecution. Not every defendant who was convicted was required to pay costs. This had always been the approach adopted by the court. A defendant was presumed innocent until he was found guilty. It was the duty of the prosecution to tender evidence and prove beyond reasonable doubt that a defendant was guilty. This was the fundamental constitutional right which each defendant enjoyed. The defendant would be deprived of this fundamental right indirectly if he was penalised on costs because he did not plead guilty and resulted in the prosecution tendering evidence to prove the case, or because he raised a defence that was not accepted by the court. R v Chan Chor [1968] HKLR 540 considered.

(3) In applying the Costs in Criminal Cases Ordinance, a magistrate had to consider whether there were any special circumstances which caused the prosecution to incur extra expenses, including the behaviour of the defendant throughout the trial, like being deliberately difficult to the prosecution witnesses, intentionally delaying the case, or insisting on the prosecution proving unimportant or undeniable facts. The magistrate also had to consider the financial condition of the defendant before deciding whether to impose a costs order. R v Chan Chor [1968] HKLR 540 considered.

(4) Although an unrepresented and verbose defendant might cause the prosecutor or the court to think that he was being deliberately difficult, the court should not further penalise him for his behaviour, particularly when he was exercising the fundamental constitutional right granted to him."

Counsel says that there are no special circumstances in this case on which to base the order for costs.

8.As the learned Chief Judge observed, the Costs in Criminal Cases Ordinance, Cap. 492 does not specify the circumstances under which a court may order a defendant to pay the costs of the prosecution. It therefore appears to me to be a gratuitous act of legislative amendment by judicial power to superimpose a condition that a magistrate has to find special circumstances before making an order for costs. Of course I am aware of older authorities in England and Hong Kong to the effect that criminal courts should not normally order convicted defendants to pay costs. Our legislature must also be presumed to know such authorities too. Yet in enacting the Costs in Criminal Cases Ordinance, Cap. 492 our legislators did not see fit to insert an appropriate rider consistent with that which has fallen from the learned Chief Judge. I would have thought that in the absence of express provision fettering the power to order costs, the courts are left to entirely their own discretion.

9.I do admire the learned Chief Judge for his concern for the constitutional rights of defendants. However, quite apart from the principle of separation of powers whereby legislative acts should not be exercised by the courts, I am not sure if the learned Chief Judge has cast a somewhat unnatural light on another constitutional principle. If ordering a convicted defendant to pay costs amounts to deprivation indirectly of a defendant's constitutional rights to contest the case against him and to require the prosecution to prove its case, one should be forgiven for considering the situation in civil cases. Are defendants in civil cases not entitled to contest the case against them? Are they not also entitled to require the plaintiffs to prove their case? Yet it is well established principle that, in general, costs in civil cases should follow the event. So, in adopting the principle that costs should follow the event and in commonly ordering costs against defeated defendants in civil cases, have the courts routinely violated the constitutional rights of defendants in civil cases?

10.With all due respects to the learned Chief Judge, I venture to suggest that an innocent accused has no cause to take into account the possibility of an order for costs against him when considering whether to contest a criminal charge. On the other hand, a guilty defendant may be discouraged from making a vain attempt to try his luck when he has as a matter of principle to pay the costs of successful prosecution. The constitution should not be taken as a guarantee for an accused to try his luck. The constitution should also protect the general public too. Why should the general public, harassed by crimes, be made to bear the costs of prosecution of those who commit crimes?

11.Of course, I may be wrong in my views about the application of the Costs in Criminal Cases Ordinance, Cap. 492. I therefore asked counsel on both sides to check again if there are higher decisions on the subject. Both counsel have since advised that there are no decisions by the Court of Appeal or higher directly on the point. So I am afraid the issue is rather unsettled.

12.I was also concerned, because in almost all magisterial appeal cases I have dealt with the courts below ordered costs upon convicting the appellants, that magistrates tended to order costs as a matter of course in flagrant disregard of the learned Chief Judge's earlier decision. I therefore asked counsel for the government to ascertain whether my impression tallies with statistics. Counsel has since advised me that no statistics are kept as to the number of cases in which order for costs has been made. In the circumstances and for the reasons I have given there is no need for me to be alarmed about the number of costs orders made in the magistracies.

13.Counsel for the government has rendered invaluable assistance to me in another respect. Counsel points out that, even if the discretion to order costs against a convicted defendant is somewhat fettered, in Malkiat Singh (1982) 4 Cr. App. R. (S) 38 Drake J delivering the judgment of the English Court of Appeal held at 39 that:-

"It is well recognised and well settled and hardly needs saying that it is not the position in law or in practice that every judge should order a defendant, who pleads not guilty but who is found guilty, to pay the costs of the prosecution. But it is also well settled that there is a discretion which can be exercised by the trial judge if he takes certain matters into account. One of those matters is that the defendant had chosen to contest a case which was a strong case against him. Another matter is that it is a case where the truth must be known to the defendant (emphasis added)."

In the present case, the truth must be known to the appellant hence the trial magistrate was justified in ordering costs against him.

14.I believe what Drake J means by "the truth must be known to the defendant" is that where an accused is convicted after his evidence has been rejected, i.e. the accused contested a case by uttering a false version of events, the trial court would be justified in ordering him to bear the costs of the prosecution. This is not inconsistent with my own humble opinion but would offend the constitutional principle as seen by Chief Judge Chan. With this observation I need to say no more.

15.In the premises, I cannot see how the trial magistrate can be criticized for exercising her discretion in ordering the appellant to pay costs. Accordingly, the entire appeal is dismissed.

Representation:

Mr Richard Ma, Government Counsel, for Director of Public Prosecutions

Mr Walker Shum, instructed by Messrs Johnson Stokes & Master for the Appellant