HKSAR v. Au Pak Cheung Alexander

HCMA 107/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 107 OF 2015

(ON APPEAL FROM ESCC 4120/2013)

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DECISION ON COSTS

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1.The Appellant was convicted by a Magistrate of Dangerous Driving[1]. He appealed against the conviction. The appeal was allowed and the conviction was quashed. He now applies for costs for both the trial and the appeal.

2.Parties agreed that the application can be disposed of on paper.  Submission in writing was made by both parties.

3.The Respondent has no objection to the application for costs of the appeal but objects to that in respect of the trial.  The basis of the objection is that the Appellant had brought suspicion on himself.

4.I see no reason not to make a costs order in favour of the Appellant in relation to the appeal.  As regards the costs in relation to the trial, I have considered the matter having regard to submission of parties.

5.It is well established that an accused who was acquitted should normally be compensated for the costs incurred in defending himself.  If, however, the accused had brought suspicion upon himself it may give rise to exercise of discretion to deprive him of costs.

6.At the trial, two limbs of allegation were made against the Appellant :

(1)  first limb : the Appellant drove at a very high speed and when he was negotiating a right bend the car crossed the continuous double line separating two lanes of the same direction of traffic; and

(2)  second limb : shortly later he was detected by a laser gun to be driving at the speed of 118 km/h at a section of the road where the speed limit was 50 km/h.

7.The Magistrate found that the prosecution failed to prove the first limb of allegation but found that the second limb was proved.

8.On appeal, having regard to the whole of the evidence in this particular case, bearing in mind that the implication of the evidence of the officer operating the laser gun was that the car was about 240 meters from him but the distance displayed in the laser gun was some 131 meters, and the expert evidence about the possibility of a speed reading resulting from laser beam hitting something other than the car, I held that the Magistrate erred in finding that the speed reading must be a result of the laser beam hitting the car.  As a result, the speed detected by the laser gun cannot be regarded as reliable evidence against the Appellant as to the speed of his driving.  Since there was no other reliable evidence to prove the speed, the conviction cannot stand.

9.Despite the result of the appeal, the Respondent submitted that the Appellant had brought suspicion upon himself.  The Court was asked to look at the Appellant’s conduct during the investigation, the way in which he conducted his defence at the trial, as well as the conduct with which he was charged and the general setting of such conduct.

10.It was the contention of the Respondent that despite the Magistrate was not satisfied on the first limb of allegation, the Court in consideration of the matter can still take into account the Appellant’s conduct under that limb.

11.Counsel for the Respondent, Mr Edmond Lee, SADPP, submitted that as the Appellant said under caution that “I did not deliberately cut the double white lines.  It was possible that one of the wheels touched on negotiating the bend”, he had admitted crossing the double line.  He also pointed out that it was only at the trial that the Defence adduced expert evidence that the maximum speed the car could go round the bend without skidding was some 86 km/h and sought to cast doubt on the evidence of the observing police officer that the car was running at a speed of about 100 km/h.  It was submitted that with the said admission and the evidence that the Appellant could be travelling up to 86.5 km/h at a section of the road of which the speed limit was 50 km/h, the conduct of the Appellant at the time of the investigation and the trial had brought suspicion upon himself.

12.Mr Lee also submitted that the driving manner of the Appellant in the circumstances of the case, namely driving in high speed at night on a road with a speed limit of 50 km/h in an urban and hilly area with school, tennis centre and bus stop in the vicinity, was a reprehensible conduct and it would be an affront to the administration of justice to award him costs of the trial.

13.I do not agree what the Appellant had said under caution amounts unequivocally to an admission of crossing the line.  As regards the assertion about the speed of the car, I note that the evidence of speed from the police officer was rejected by the Magistrate.  The expert evidence cannot be relied upon to prove that the car was running at some 86 km/h, or at a speed close to that.

14.The driving conduct which the Respondent said was reprehensible is excessive speed in the circumstances.  It may well be that the car was running at a speed which attracted the attention of the police officer, however, in the light of the state of evidence, it is difficult to tell how excessive the speed was in the circumstances, let alone whether it constituted dangerous driving.

15.In my judgment, there is insufficient justification to depart from the established norm.  I therefore order the Respondent to bear the costs of the Appellant for both the trial and the appeal.

Ivan Tang & Co., for the appellant

Mr Edmond Lee, SADPP, of Department of Justice, for the respondent