HKSAR v. William Robert Hywel Clark

HCMA 26/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO 26 OF 2014

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DECISION ON COSTS

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1.On 10 June 2014, I allowed the appeal by the appellant on the basis that the evidence did not support the charges of which he was convicted.

2.The appellant had been convicted after trial of dangerous driving, failing to stop after an accident and failing to report to the police after an accident.  The charges he faced arose from an incident in the City Hall car park where the car he was driving allegedly bumped into the rear of the car in front of him as they were exiting the car park.  I found that the other driver was abusive and aggressive at the time of the incident and that he made no attempt to exchange names and particulars if he thought it was necessary.  Instead he called the police, without informing the appellant that he had done so.  The appellant waited for a while and remained passive.  He believed his car had not come into contact with the other driver’s car.  There was doubt as to whether any damage had resulted, although according to the evidence of the other driver he saw a single minor scratch mark on the bumper of his car.  The dangerous driving allegedly occurred when the appellant after having stopped and waited for a while left by reversing a short distance to turn to leave from another exit.  The passenger of the other driver’s car, who was filming the appellant with her mobile phone, was near the rear of the appellant’s car as he slowly reversed a short distance to move forward to leave. There was nothing dangerous about the manner of his driving at the time. 

3.It is unfortunate that this matter has gone as far as it has considering it involved a very minor traffic incident, which at its highest consisted of a slight bump of cars in a car park.

4.The appellant through his legal representatives made submissions for this case not to proceed and in my view, after an assessment of the case, they were well founded.  However, they were rejected and the case proceeded to trial.

5.I invited written submissions from the parties on the question of costs.  The appellant seeks his costs at trial and on appeal. The prosecution opposes the award of costs to the appellant on grounds that appear to be an attempt to suggest that the appellant brought suspicion upon himself but they seem to ignore my assessment of this case and the findings of fact I have made.  If anything, the other driver inflamed the situation by his obdurate behaviour at the time of the incident.  There is no substance to the grounds advanced by the prosecution.  It is argued that the appellant is not deserving of his costs because of the following matters.  Firstly, the appellant gave an inaccurate version about using his brake light.  The appellant in evidence explained that he reversed very slowly in the carriageway of the car park with his foot on the brake.  From the Magistrate’s viewing of the video recording made by the passenger, he did not see the appellant’s brake lights turn on when he reversed.  I have viewed the video recording and it shows that the appellant reversed his vehicle very slowly and for a short distance, and that a light turned on when he commenced reversing and turned off when he then moved forward.  Not only is this point of no relevance to the issue of costs, it is also doubtful.   Secondly, the appellant moved two traffic cones that were placed there by car park attendants to redirect traffic which the prosecution argue he should not have moved and should have waited for the police to arrive even though no one had told him that the police had been called.  This fundamentally lacks any appreciation of the overall facts of the case and ignores the findings of fact that I have made in my decision.  Thirdly, the appellant remained silent under caution, as is his right, but the prosecution argue he should not have done so.  However, the appellant’s solicitors did make written submissions to the prosecution giving his account of what happened, but it is argued by the prosecution that this was in the form of a letter from solicitors containing bare assertions that were not admissible and subject to change.  This is a surprising submission to make and is incomprehensible.  Fourthly, findings of fact were in any event needed for the first charge of careless driving to which the appellant had pleaded guilty.  How this is a ground opposing costs to the appellant for the other charges he contested completely escapes me.  I suspect the appellant pleaded guilty to the careless driving in the hope of disposing of what he considered to be a very minor traffic incident. 

6.On an appeal by way of rehearing, I have found the appellant not guilty of the charges of which he was initially convicted.  I have looked at the appellant’s conduct generally that was relevant to the charges he faced and I find nothing in his conduct to deny him his costs which should ordinarily be awarded to him following a dismissal of the charges against him.  See s 120 of the Magistrates Ordinance, Cap 227 and s 8 of the Costs in Criminal Cases Ordinance, Cap 492 and the guiding principles in Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 and R v Kwok Moon-yan and Anor [1989] 2 HKLR 396.  The principles stated in Tong Cun Lin and Kwok Moon-yan dealt with the law prior to the enactment of the Costs in Criminal Cases Ordinance but are commonly referred to for guidance when addressing questions of costs under the Ordinance.

7.On the issue of costs arising from a successful magistracy appeal, it needs to be appreciated that the proceedings are a rehearing of the case.  If the court concludes that the appellant was not guilty of the offence on which they were initially convicted, the appellant would be entitled to an order of costs unless there are positive reasons for making a different order. Positive reasons have been held to exist where the appellant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger that it is; or where there is ample evidence to support a conviction but it is quashed on a technicality which has no merit. This is the principle stated in Kwok Moon-yan. 

8.Further guidance is provided by the Court of Final Appeal in Tong Cun Lin where Litton PJ at 535 D-H, said the following:

“ 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 … 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.”

9.I fail to see how any of these grounds provide a proper basis to object to the appellant receiving costs.  They are completely devoid of merit and totally inappropriate.  To oppose costs on spurious grounds as done here fails to recognise the obligation of providing positive reasons for not awarding costs to a successful appellant.  I trust this will not be repeated again.  I accordingly award the appellant his costs at trial and on appeal, including the costs of this application, to be taxed if not agreed.

Mr Prakash L Daryanani, Senior Government Counsel of Department of Justice, for the respondent

Mr G Surman, instructed by Haldanes, for the appellant