HKSAR v. Milburn, Tanya Margaret

HCMA971/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 971 OF 2010

(ON APPEAL FROM STS 5002 OF 2010)

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BETWEEN

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Before : Hon Barnes J in Court

Dates of Hearing : 14 July 2011

Date of Judgment : 14 July 2011

Date of Reasons for Judgment : 19 July 2011

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REASONS FOR JUDGMENT

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1.The appellant was charged with “Careless Driving”, contrary to section 38 of the Road Traffic Ordinance, Cap. 374. She pleaded not guilty and was acquitted after trial. The learned deputy magistrate (“the magistrate”) refused to award costs to the appellant and the appellant appealed against the said costs order.

2.After hearing submissions, I allowed the appeal and ordered that costs of the appeal and of the trial below be to the appellant/defendant, to be taxed if not agreed.  Here are my reasons.

The case

3.The case arose out of a traffic incident, in which the appellant’s vehicle collided with PW1’s vehicle at a round-about.  Suffice it to say that it was a classic case of “one person’s words against another”.  The magistrate, at the end of the trial, found that he did not believe the testimony of the appellant; he also found that he could not rely on the evidence of PW1.  The appellant was given the benefit of the doubt and was acquitted.

4.In refusing costs, the Deputy magistrate referred to the case of R v Kwok Moon Yan & Another [1989] 2 HKLR 396 and HKSAR v Kwai Hon Bi, unreported, HCMA592/2010, and came to the conclusion that the appellant had either brought suspicion upon herself or had misled the prosecution to conclude they had a stronger case.

Ground of appeal

5.The ground of appeal tendered by Mr John Beukema on behalf of the appellant was, basically, that the appellant had not brought suspicion upon herself, the magistrate has therefore wrongly exercised his discretion.

Applicable principles on costs

6.Section 3 of the Costs in Criminal Cases Ordinance, Cap. 492, provides that where a magistrate has acquitted a defendant, he may order that costs be awarded to that defendant.  In short, a discretion is vested in a magistrate. 

7.The Ordinance does not lay down the principles which govern the exercise of the magistrate’s discretion.  Before the enactment of Cap. 492, costs in criminal cases were governed by the now repealed section 73A of the Criminal Procedure Ordinance, Cap. 221.  The applicable principles in the exercise of the discretion whether to award costs were discussed in a number of cases : R v Ng Yui Kin & Others [1983] HKLR 356, R v Kwok Moon Yan & Another (the case cited and relied upon by the magistrate.)

8.The Court of Final Appeal has, in the case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, affirmed and elaborated these principles.  These principles are again re-affirmed by the Court of Final Appeal in Hui Yui Sang v HKSAR [2006] 2 HKLRD 738.

9.The general rule is that the court should normally award costs to an acquitted defendant unless there are some positive reasons to deprive him of such costs. Positive reasons include whether he has brought suspicion upon himself; whether his conduct has misled the prosecution into thinking that the case against him is stronger than it is; whether there is ample evidence to support a conviction but it is quashed on a technicality which has no merit.

10.In Tong Cun Lin, Litton PJ, when giving judgment of the Court of Final Appeal, elaborated on the “general conduct” of an acquitted defendant :

“What then are the governing principles? 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 : These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

The same principles are applicable here.

11.It is also a general rule that an appeal court would be slow to interfere with the exercise of a discretion by a lower court : see e.g. Hui Yui Sang.

Reasons given by the magistrate

12.The reasons give by the magistrate (in paras. 12 and 13 of his Reasons for Decision for Refusing defendant’s costs) :

“12. In this case, I am of the view that mirror-check and shoulder-check are the important evidence to show the Defendant’s driving manner at the material time. Given that the Defendant was not disputed she had changed her lane before the collision, mirror-check and shoulder-check would be invariably important and the Defendant should not fail to tell the same to the police when she was given a chance to do it by making her statement. Normally, in a trial of careless driving, the parties involved in an accident will act as either defendant or prosecution witness. Thus, if the Defendant correctly described her driving manner to the police, the police might invite her to become prosecution witness instead of the Defendant.

In light of the aforesaid, the failure to correctly making her statement in relation to her driving manner will either bring herself suspicion or mislead the prosecution to conclude they will have a strong case against the Defendant. The same had been adopted in HKSAR v Kwai Hon Bi (HCMA592/2010, in Chinese), the Appeal Court refused to award costs to the appellant since the appellant has failed to give accurate statement during investigation (para.11). In the circumstances, I refused to the Defendant’s application on costs.” [Emphasis added]

13.With respect to the learned magistrate, I do not see how the failure on the part of the appellant to provide those details in her statement to the police had brought suspicion onto herself, or that such failure had misled the prosecution into thinking the case against her was stronger.

14.The appellant did not give a totally different or inconsistent story to the police.  Her version in court was consistent with her version to the police that the other party (i.e. PW1) was at fault.  She had given explanation as to why she did not provide the kind of details in the statement : she has never been interviewed by the police before and she did not know she had to provide that kind of details. After all, one cannot ignore the fact that the police did not ask her for further particulars either.

15.In my view, it is not open to the magistrate to conclude that had the appellant given those particulars to the police she might have been invited to be a prosecution witness instead, of and not be a defendant in this case.  As I have pointed out, this is essentially a case of “one person’s words against another”.  I do not wish to comment on how the police should proceed with incidents of this nature.  The court can only deal with what is presented before it. In the present case, the prosecution failed to satisfy the magistrate that the appellant/defendant was guilty of careless driving.

16.There was no good reason why the general principle should not apply here.  She had not brought suspicion upon herself (even when the magistrate found her evidence not totally believable); and she had not done anything to make the prosecution think its case against her was stronger.  Essentially the prosecution was relying on the evidence of PW1, which, in the end, was not accepted by the magistrate.

17.Although the magistrate referred to the case of Kwai Hon Bi to support his decision not to award costs, having read that judgment, it should be noted that the defendant in that case was successful in setting aside his conviction on appeal and he was awarded costs of the appeal.  The learned Deputy High Court Judge refused costs of the trial.  It was in that context that the learned judge had relied on the failure on the part of the defendant to provide details in his statement.  It does not follow that a defendant would invariably or inevitably bring suspicion upon himself when failing to provide details in his statement.  The facts of each case differ and must be carefully looked at and analysed.

18.In my view, when an appellant is successful on appeal, he should normally be awarded costs of the appeal unless there are good grounds to deprive him of the costs.  However, whether such an appellant is entitled to the costs at the trial as well is another matter.  The court has to look at the reasons why the appeal was allowed.  Was it because there was not enough evidence?  Was it because the magistrate has made some mistakes in law and/or in the fact-finding process, rendering the conviction unsafe?  Or was it the case that a prosecution should not have been brought against the appellant in the first place?

19.In my view, the magistrate has wrongly come to the conclusion that the appellant had either brought suspicion upon herself or had misled the prosecution into thinking that the case against her was stronger.  The magistrate has not exercised his discretion properly and I set aside his order.

20.I wish to add that I was surprised to see that the magistrate has only cited and relied on the case of Kwok Moon Yan, when the Court of Final Appeal has already given an authoritative judgment on the costs issue in the case of Tong Cun Lin, and later confirmed such principles in Hui Yui Sang.  I hope the magistrate (and other magistrates) will take heed of the relevant authorities when dealing with similar applications.

21.By wrongly exercising his discretion, the magistrate deprived the appellant her rightful costs and she has to come before me for remedy, resulting in more costs to be awarded to her from the public revenue.

Ms Chit Noelle, Aileen, Public Prosecutor of the Department of Justice, for the Respondent

Mr Beukema John Paul, of Messrs Littlewoods, for the Appellant