HKSAR v. SINGH BHAGT

HCMA 383/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 383 OF 2003

(ON APPEAL FROM WSCC 1925/2002)

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J U D G M E N T

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1. The Appellant was charged with Fighting in a Public Place contrary to section 25 of the Public Order Ordinance, Cap. 245 and at trial an alternative charge of Common Assault, contrary to section 40 of the Offences Against the Person Ordinance, Cap. 212 was preferred against him in addition.

2. The Appellant was acquitted of the charge of Fighting as well as the alternative charge of Common Assault. The Magistrate ruled there was a case to answer, but before the Appellant could give evidence or call witnesses, the Magistrate dismissed the case against him.

3. The Appellant applied for costs but his application was refused by the Magistrate on the grounds that the Appellant had brought suspicion upon himself. In his Reasons for Ruling the Magistrate stated:

" After considering the PWs' evidence, it's clear that there was some kind of scuffle between PW1 and the Appellant but I couldn't say for sure whether it was a one-way attack of PW1 by the Appellant, as described by PW1, or if it was a fight, as described by PW3. Therefore the Appellant was acquitted.

However, it's clear that this incident started with the Appellant trying to park his motor cycle in a place other than an authorized parking space. It's also clear that the Appellant did take part in the scuffle. Both he and PW1 were injured, albeit slightly, in this incident. I found that his conduct, as revealed by evidence, did bring suspicion upon himself. Therefore his application for costs was refused. "

4. PW1 was a construction site worker carrying out some renovation work, at the entrance to the Kingley Building where the Appellant worked as a security guard. The work being carried out by PW1, was sufficient to block the entrance to the Kingley Building, which meant the Appellant could not enter the compound to park his motorcycle. The Appellant commonly, and had for 20 years, parked his motorcycle in the open space or compound in the Kingley Industrial Building. The Appellant worked for a jewellery company which permitted him to do so.

5. An argument started after PW1 blocked the entrance, but refused to assist the Appellant to bring his motorcycle through.

6. The Appellant from the outset, had alleged this was a case of self-defence because he had been struck by PW1 who refused his request for access. This allegation of self-defence was borne out in some respects by the evidence given by the police officer who attended the scene. He confirmed that he had seen, on the Appellant's clothing, a mark consistent with his having been struck by a rod.

7. The ground of appeal was that there was no evidence at all the Appellant parked the motorcycle "in a place other than an authorised parking space" as suggested by the Magistrate, nor was there any evidence to suggest the Appellant was not permitted to park at the location.

8. At the trial, three different versions of the incident were given by PW1, PW2 and PW3, so it was hardly surprising that the Magistrate was able to acquit the Appellant. It is perhaps more surprising as to why, given the unsatisfactory state of the evidence, he was able to find a case to answer.

9. I was referred by counsel for the Appellant to HKSAR v. Tong Cun-lin [2000] 1 HKLRD 113, which reviews the principles governing the award of costs to successful defendant. I was also referred to HKSAR and Liu Sun Kong and Another HCMA No. 851 of 2002, and, further, The Queen and Kwok Moon-yan and Lok Man-chiu [1989] 2 HKLR 396, both of which examine the relevant principles.

10. The exercise of the power to award costs is in the unfettered discretion of the court, but is to be exercised according to the facts of each case. Normally an award should be made unless positive reasons for not making such an order exist. Positive reasons would exist if the Appellant's own conduct has brought suspicion on himself, or if he has misled the prosecution into thinking that the case against him is stronger than it is. Similarly where there is ample evidence to support a conviction but the charge is quashed on a technicality which has no merit, that would be a positive reason for not making an order.

11. At the close of the Prosecution case, the Magistrate found he was not able to rely on the evidence of PW1, PW2 or PW3. For that reason, rather than for any technicality, he dismissed the charges against the Appellant. The Appellant had no opportunity to put his account to the Magistrate, nor call his supporting witness to give evidence. The Appellant's position had been consistent throughout since the time he was first spoken to by the police officer.

12. Given his view of the Prosecution witnesses, there does not appear to have been any reliable evidence to support the Magistrate's conclusion that the Appellant was attempting to park in a place other than an authorized parking space, or that the Appellant was acting other than in self defence. The "normal practice" should have been followed and costs awarded.

13. Accordingly, I allow this appeal and the order refusing the application costs is set aside. I award the Appellant the costs of this appeal and his costs in the court below, such costs to be taxed if not agreed.