HKSAR v. RONACRETE (FAR EAST) LTD.

HCMA1061/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1061 OF 1999

(On appeal from FLS3423/1999 & 3424/1999)

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J U D G M E N T

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1. In this particular matter, the appellant company had been acquitted after trial of the two summonses issued under the Factories and Industrial Undertakings Ordinance, Cap.59. However, the learned magistrate refused to grant a costs order to the defence despite the acquittal. It is against this decision that the present appeal was brought.

2. In her Statement of Findings, the learned magistrate stated the relevant law on the issue of costs and this could be found at paragraph 2 of the Statement. She pointed out that :

"As set out in Section 3 of the Costs in Criminal Cases Ordinance, it is clear that the normal practice is that upon an acquittal, costs should follow. The Ordinance does not specifically state the circumstances in which an acquitted defendant should be awarded costs but guidelines have been set out in R v Kwok Mun-Yan and Lok Man Chiu 1989 2 HKLR 396. Although there is a residue discretion in the awarding of costs, there must be positive reasons for not awarding costs to an acquitted defendant. These are where the defendant has bought suspicion upon himself, has misled the prosecution in believing they had a stronger case than it did or where the acquittal is the result of a technicality even though there is sufficient evidence to result in a conviction."

And in paragraph 8 of the Statement of Findings, the magistrate stated the main reason why she had refused to grant the costs order :

"... As I have said, I came to the view that if it had not been for PW4, Mr. Leung, the appellant's production manager, being a prosecution witness (as opposed to a defence witness) the outcome of the trial would have been different. I took the view that the reasons why I acquitted were akin to a technical acquittal. ..."

3. Based on this, the magistrate found that there was a positive reason why she ought not to award costs.

4. Counsel for the appellant did not really challenge the learned magistrate's view of the law. The main criticism, however, was that the acquittal could not be said to be akin to a technical acquittal in the circumstances.

5. In relation to the reasons for the acquittal, the magistrate had this to say in what she described as the outline reasons for verdict :

"Technically, PW4 is a prosecution witness but in reality I regarded him more as a defence witness as he presented the defence case. Between PW2 and PW3 themselves there was discrepancy as to procedure. In fact, PW3 contradicts himself. There are discrepancies in particular between PW2, 3 and 4 as to the practice that Mr Leung, PW4, would be consulted after the pipe was cleaned every time. PW2 said that was not the case, he would be consulted only when necessary or when he could not work it out himself. PW3 said 'no' at first and then he said 'yes'. PW4 said the procedure is he instructs the pipe to be repaired, the first step would be to clear it. PW2 had done it previously in the past on numerous occasions. PW4's evidence was that he was trained by the English engineer who installed this plant. The second step would be he then must be consulted, called down to see what the fault was before any further steps were to be taken, instructions were to come from him. He gave evidence that to turn the pipe on for a short burst was one way to clear it. Having gone through the evidence of PW2, PW3, PW4 I can only agree that there are many discrepancies in their evidence."

Further, in her Statement of Findings, the magistrate focused on the problems created by PW4 being called as a prosecution witness. In this regard, she stated in paragraph 6 of her Statement of Findings that :

"I found myself faced with the fact that there were 2 conflicting sides in the prosecution evidence alone. It was urged upon me in final submissions by the defence that I could not reconcile the discrepancies in the prosecution evidence. I could not disregard PW4 entirely and attach no weight to his evidence without good reason and only consider PW2 and 3 as reliable. I could not get around the fact that PW4 was a prosecution witness. The prosecution case must be looked at in it's entirety. I could not, without good reason, pick and choose only those parts that support the prosecution case."

It does appear that the magistrate had given much emphasis on the status of PW4 as a prosecution witness. The implication, therefore, was that if PW4 had been a defence witness, she would have been able to disregard his evidence.

6. In this connection, I would have to agree with the appellant's submission that whether a witness is believable or not does not depend on whether the witness is called by the prosecution or the defence. If the trial magistrate was unable to say, at the end of the day whether PW4 was a reliable witness after hearing all the evidence, then it must mean that there is a reasonable doubt in the case, whether PW4 was called as a defence witness or otherwise. Being a defence witness alone is not a justifiable ground to disregard his evidence. The contents and context of his evidence, together with the way of how he gave evidence, must be taken into account in deciding whether what he said in the witness box was true or not.

7. Considering the reasons for the acquittal, I have to accept the appellant's submission that this cannot be said to be a technical acquittal. The learned magistrate had carefully considered the issue of credibility of the witnesses and had decided that there were discrepancies in the prosecution case, and it is on that basis the appellant company was acquitted. On this issue, the prosecution frankly and fairly agreed that they were unable to argue too strongly that it is a technical acquittal.

8. In the circumstances, I have to allow the appeal on this point alone. I do not find it necessary to go through the other matters raised by the appellant.

9. I shall order that costs for the trial of the summonses be awarded to the defence, the amount to be taxed if not agreed. As for the costs of this appeal, a similar order shall be made, i.e. costs to the appellant, the amount to be taxed if not agreed.