HKSAR v. Tsang Chiu Fo

HCMA 428/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 428 OF 2008

(ON APPEAL FROM STS 8335/2007)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 3 September 2008

Date of Judgment:  3 September 2008

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J U D G M E N T

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1.The Appellant was summoned for careless driving in the Magistrates’ Court and on the day of the trial the prosecution offered no evidence so the Appellant was acquitted and at that stage the Appellant through his counsel applied for costs of the hearing.

2.The application was heard by the learned Magistrate and at the end of the day, he ordered that the Appellant was not entitled to his costs and thus the appeal. 

3.The allegation of the Prosecution initially that the Appellant was driving carelessly was based on the evidence of PW1, a lorry driver, that the Appellant’s car had cut into his lane, resulting in a collision and therefore, the Appellant was driving carelessly.

4.Before the hearing, the defence managed to obtain the report of a defence expert.  According to the Reasons for Order of the learned Magistrate, the defence expert said that there were blind spots from where the lorry driver was sitting and so the lorry driver may have failed to notice the Appellant and resulting in the accident.

5.The prosecution, upon receiving the defence expert report, obtained their own report.  (See page 17 of the Appeal Bundle)  The Government Chemist’s report was referred to by the prosecutor:

“Unlike what is alleged by the lorry driver as to the existence of the defendant’s vehicle before the accident, the defendant’s vehicle had been stationary in front of the lorry for some time before the accident.  And this is contrary to what the witness alleged, that, all of a sudden, defendant’s vehicle cut into his path from his left-hand side.”

6.The prosecution went on to say that in the Defendant’s cautioned statement, the Defendant had said that he had waved at the lorry, but the lorry had failed to notice him when he cut in front of him, so the prosecution said that they were objecting to the application for costs.

7.The learned Magistrate in his findings mentioned that he went through all the documents, including the expert reports of the prosecution and defence, the photos, statement of the Appellant and, of course, the legal references.  His conclusion was at paragraph 8 of his Reasons for Order, where he said at page 11 of the Appeal Bundle:

“The court had considered the authorities submitted by the Defence.  It is considered that the Prosecution expert report is not helpful in consideration of costs.”

8.I pause there because I am rather confused as to why the learned Magistrate mentioned that because it is clear that the basis for the offering of no evidence towards the prosecution expert report and it was clear from Miss Ng’s submission, who was the prosecutor at the time, that the expert report clearly gave the lie to PW1’s evidence and that is the reason for the offering of no evidence.

9.The learned Magistrate has to consider everything before exercising his discretion whether to award costs.  And one of that is what happened prior to the decision to offer no evidence and also whether the Appellant had brought suspicion upon himself.

10.At paragraph 9, the Magistrate purportedly dealt with it by saying:

“Based on the above observations, on the face of it, the driving behaviour of the appellant would be considered as lower than a prudent and careful driver.  The appellant had brought suspicion himself and Police had done no wrong initiating the Proceedings against him.”

11.The learned Magistrate had committed an error in this paragraph.  It is clear that he came to the conclusion that the Appellant was indeed driving in a less than prudent and careful way.  And therefore, he considered that to be the basis of bringing suspicion upon himself, having ignored the basis of the prosecution offering of no evidence at that stage based on the prosecution expert’s report.

12.This is a classic case for costs.  The general principle is that an acquitted person is entitled to his costs unless there are exceptional circumstances, and one of those exceptional circumstances is that he brought suspicion upon himself.  In hearing application for costs, one must be careful that one does not fall into the trap of deciding the guilt of an acquitted applicant when there has been no hearing.  Clearly the learned Magistrate’s words in his Reasons for Order would indicate that he drew that conclusion and justice had to be seen to be done.  Mr Tso tried to persuade me otherwise, but those words do indicate or to an interested observer, that the learned Magistrate had drawn a conclusion of guilt when there had been no trial.  So I have to look at the application for costs again.  In the circumstances, I find that there are no special circumstances to deny the Appellant of the costs and he should be entitled to costs for that hearing.  He did what he could to prepare for the trial and it was the result of his preparation for trial that caused the prosecution to conduct their own investigation.  And this led to the offer of no evidence, so he should be entitled to his costs.  I order that he be granted costs for the hearing in the court below and also for this appeal, and the costs to be taxed, if not agreed.

Mr Simon Tso, Senior Public Prosecutor, for the Respondent

Mr Kevin Wong, instructed by Messrs Louis K Y Pau & Co., for the Appellant