HKSAR v. Hsu, Edmond Yik Man

HCMA 871/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 871 OF 2004

(ON APPEAL FROM KCCC 9607/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 28 September 2004

Date of Judgment: 28 September 2004

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J U D G M E N T

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1.This Appellant was convicted of one count of Careless Driving and one count of Driving a Motor Vehicle with Alcohol Concentration in the Breath exceeding the prescribed Limit and pleaded guilty to both charges.  He was fined $2,000.00 on the 1^st charge.  On the drink-driving charge he was fined $10,000.00, disqualified from driving for 24 months and sentenced to imprisonment for 2 months, suspended for 3 years.  In addition, he was ordered to pay the prosecution costs of $10,000.00.  The Appellant appealed against the costs order only.

2.In his Reasons for Sentence, the trial Magistrate himself conceded that the costs order should be set aside in light of the authorities, Chaung Yun Hung, HCMA 1245 of 1999 and Chan Kwok Hung, HCMA 701-714 of 2000.

3.The Appellant also referred to HKSAR v Cheng Tak Wai, CACC 513 of 2001, which held that although the Magistrate has a discretion to order a defendant to pay the costs of the prosecution under section 15(c) of the Costs in Criminal Cases Ordinance, Cap. 492, it was required that the order be just and reasonable.

4.In this case, the Appellant admitted his guilt to the police immediately upon arrest.  He pleaded guilty at the first hearing in the Magistrate’s court.

5.The Magistrate fined the Appellant $20,000.00 in the first instance, whereupon it was pointed out that the maximum fine for this charge was $10,000.00.  At that stage he reduced the fine to $10,000.00, but ordered the Appellant to pay $10,000.00 in costs.  It would be possible from that action to draw the inference that the costs order was being imposed as a means of additional penalty.  In this case, there was no question of the Appellant having abused the investigative or court procedures thus causing the prosecution extra costs.

6.It was also submitted that the Magistrate failed to make a proper investigation into the Appellant’s means to pay such a costs order before it was imposed.

7.In HKSAR v Man Chai Wah [2004] 2 HKC 90, it was held that an accused in a criminal case was entitled to put the prosecution to proof of the case against him and a costs order should not normally be made against an accused who exercised such a right.  While a Judge, or a Magistrate, had the discretion to order an accused to pay the costs of the prosecution an order for costs should normally only be made against an accused in exceptional circumstances, such as the conduct of the accused in relation to the investigating and/or prosecuting of the case, which constituted an abuse resulting in the prosecution having to incur extra costs which, in the normal course of events, would not, or need not, be incurred.

8.In this case, the Appellant had not wasted the time of the court and had not put the prosecution to any extra expense in dealing with the charges.  In his Reasons for Sentence, the Magistrate accepted that although the costs order was made within the rules of the Costs in Criminal Cases Ordinance, it was against existing principles and agreed that it was proper for the order to be set aside. 

9.The Respondent conceded the appeal and the costs order was quashed.

10.Costs of the appeal, but not including the costs of the appearance at this hearing, were granted to the Appellant to be taxed if not agreed.

Miss Lily Ho, SGC of Department of Justice, for the Respondent

Mr Wong Vai Nang, of Messrs Simon Ho & Co., for the Appellant