HKSAR v. YU JIE

CACC 33/2022

[2023] HKCA 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2022

(ON APPEAL FROM DCCC NO 579 OF 2020)

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DECISION ON COSTS

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Hon Zervos JA (giving the Decision on Costs):

1.  On 26 September 2023, this Court allowed the appellant’s appeal against conviction. We quashed her conviction for dangerous driving causing grievous bodily harm and substituted the alternative offence of careless driving.

2.  The appellant now applies for costs of her trial and appeal (including her application for bail pending appeal, which was granted).  Prior to her trial, the appellant indicated that she would plead guilty to the offence of careless driving but this was rejected by the prosecution.  It is argued by the appellant that had the prosecution accepted her plea to careless driving, she would not have incurred the costs of the trial.  As a general rule, a court should normally award costs to an acquitted defendant unless there are positive reasons for not doing so.  An example of such reason is where the defendant’s own conduct has brought suspicion on himself or herself and has misled the prosecution into thinking that the case against him or her was stronger than it was.  It is important to note that the discretion to award costs is to be exercised having regard to the defendant’s conduct during the investigation and at the trial, but the court must not take a view of the facts palpably different from those reflected by the verdict: Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531; Tsang Wai Ping v HKSAR (2005) 8 HKCFAR 80; Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308.

3.  In light of the circumstances of this case, which we have set out in detail in the judgment, the prosecution was justified in proceeding to try the appellant for dangerous driving causing grievous bodily harm.  As pointed out by the respondent, the appellant called an independent witness who gave relevant evidence of the manner of driving by the appellant and the circumstances of the accident.  This evidence emerged for the first time during the defence case, which in our view had a material bearing on the case.  Had the prosecution been aware of this evidence, it may have reassessed the strength of its case against the appellant and decided not to proceed against her for dangerous driving causing grievous bodily harm.  Moreover, the appellant brought suspicion on herself by not disclosing relevant evidence that misled the prosecution into thinking that its case against her was stronger than it was.  She should therefore bear her own costs at trial.

4.  The appellant was successful on her appeal and we see no reason why she should not receive her costs.  The respondent has no objection to the appellant being awarded the costs of the appeal.  

5.  Accordingly, we order that the appellant be awarded her costs on appeal (including the application for bail pending appeal), to be taxed if not agreed.