HKSAR v. Martin John Staufert Turner

HCMA 535/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 535 OF 2012

(ON APPEAL FROM ESS 51113 OF 2011)

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J U D G M E N T

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1.This is an appeal against a refusal of costs following an acquittal on a charge of riding a bicycle on a road carelessly, contrary to s 46(1) of the Road Traffic Ordinance, Cap 374. The charge was brought on the basis of the prosecution’s allegation that the Appellant had cut into the lane in which a car driven by PW1 was travelling, doing that so closely in front of the car as to be careless. The Magistrate did not find that allegation proved. But she refused the Appellant costs on the basis of her view that he had brought suspicion upon himself. That was because, she said, he “cut in front of PW1’s car in a very short distance”.

2.The fact remains, however, that the Appellant was not found to have done so at a distance that amounted to carelessness on his part.  There was, in my view, no reliable basis in which to find that the Appellant had brought suspicion upon himself.  The fact that the bringing of a prosecution was a reasonable course to adopt, assuming that it was, is not of itself a basis for saying that a defendant had brought suspicion upon himself.

3.In my view, defence costs were not justifiably refused.  I allow the appeal against such refusal, and order that the Appellant have his defence costs in the Magistrates’ Court, such costs to be taxed if not agreed.

4.I will now hear the parties on the costs of this appeal.

[Submissions]

5.I award the Appellant the costs of the appeal to be taxed if not agreed, such costs not having been opposed.

Mr Timothy Parker, instructed by Vidler & Co, for the appellant

Mr Michael Tsang, of the Department of Justice, for the respondent