HKSAR v. HUSSAIN, ADNAN

HCMA 502/2024

[2025] HKCFI 5935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 502 OF 2024

(On appeal from TMCC 544/2023)

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BETWEEN

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J U D G M E N T

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1.  The Appellant (D1) and another person (D2) were jointly charged with one count of “trafficking in a dangerous drug” contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Charge 1). The Appellant was additionally charged with one count of “careless driving” contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374 (Charge 2). The Prosecution eventually decided to withdraw Charge 1 before plea. The Appellant pleaded guilty to Charge 2 and was convicted accordingly, for which he was fined. The Appellant through his then legal representative (not counsel for this appeal) applied for costs in respect of Charge 1 which was refused by the Magistrate on 19 November 2024. The Appellant now appeals against this refusal of cost order.

The Facts

2.  The Magistrate set out the relevant prosecution case at paragraph 3 in his “Statement of an Order” based on the brief facts:-

“At 1738 hours on 12 March 2023, the police spotted a light goods vehicle with registration number XT3174 (the “Vehicle”) did not comply with the road mark and was driving at the wrong direction at Feng Cheung Road (to Yuen Long Police Station’s direction). Subsequently, the police stopped the Vehicle at Yau San Street for enquiry. It was found that D1 (the Appellant) was the driver, the other defendant (D2) and an unknown person (WP[1]) were the passengers inside the Vehicle (as the “Passengers” collectively). While the police were making enquiry, a pedestrian informed the police that he saw someone threw a yellow recycle bag from the left back passenger’s window of the Vehicle. Later, cannabis was found inside that yellow recycle bag.”

3.  To resist the costs application, the Prosecution provided to the Magistrate a CCTV footage which captured the Vehicle proceeding along Castle Peak Road-Yuen Long and stopping at the roadside (“CCTV Footage”) and also the transcripts of the Appellant’s video recorded interview (“Appellant’s VRI”).

4.  The Magistrate set out the relevant contents of the Appellant’s VRI at paragraph 11 in his “Statement of an Order”:-

“After D1 (the Appellant) was arrested, he made two cautioned video-recorded interviews. In the interview dated 13 March 2023, between 23:54 and 24:35, he mentioned, inter alia, that:

120 – 122: He was the driver of the Vehicle (see also para 177 – 180).

159 – 166: He was driving the Vehicle as a private LALAMOVE/GOGOVAN driver.

168: The Passengers did not hire him through application, he took the call privately. It was his mistake to trust the Passengers.

182 – 196: The Vehicle belonged to his boss’s friend called 粒仔, he did not know 粒仔’s full name.

197 – 257: At the material times, there were two other passengers on the Vehicle. The one who was arrested with him (should be D2) told him his name wrongly. D1 met the one escaped (should be WP) in a car-washing shop, D1 could not confirm his name, and D1 stored his mobile number in another phone.

288 – 295: He was not familiar with the road in Tuen Mun and Yuen Long.

298: The Passengers did not provide the destination and said they would tell him the direction.

317: He did not know the way and simply followed the Passengers’ instruction, which was wrong.

321 – 325: He knew that he was on the wrong direction, the opposite side of the road, he tried to stop.

336 – 337: The passenger at the back might know police vehicle was approaching and he threw the stuff out of the Vehicle.

343 – 355: He did (was) not familiar with the road and did not have the address of the destination; he simply followed D1’s [sic] (should be D2’s) instruction that led him to a wrong direction.

370 – 372: He tried to stop, but the police told him to follow them, then he stopped at the point designated by police.”

5.  The parties agreed that the Appellant accepted HK$200 as the fee for the trip.

The Parties’ respective stances and the Magistrate’s decision on costs

6.  The Prosecution took the stance that the Appellant’s driving manner, as captured by the CCTV Footage, had brought suspicion upon himself in respect of Charge 1 the trafficking charge as he drove slowly past a rubbish bin before stopping the Vehicle for police investigation, thus allowing an opportunity for another to dispose of the drugs to avoid police detection (“Point A”). Also, the Prosecution submitted that the Appellant’s acceptance of the ride order as he described in his VRI had brought suspicion upon himself as well. It was because, for just HK$200, the Appellant had agreed to take D2 and WP, whom he barely knew, in his Vehicle for a journey without a clear destination and had to rely on their direction during the trip (“Point B”).

7.  The Defence stance, in relation to Point A, was that the Appellant only followed the police’s instructions on where to stop the Vehicle, as he explained in his VRI. It was not his decision to slow down at the relevant location to provide an opportunity for another to throw the drugs away from the Vehicle. In relation to Point B, the Defence, while agreeing that the manner in which the ride order was accepted might be different from the usual practice, it did not give rise to any suspicion of drug trafficking. There could be different business practices, some were app-based with proper records and there were also sub-leasing of licences and vehicles leading to less detailed recorded activities.

8.  The Magistrate had considered the respective arguments of the parties. For Point A, the Magistrate, after having considered the CCTV Footage and the Appellant’s explanation about his driving manner in his VRI, expressed that he was unable to draw the conclusion that the Appellant’s driving manner had brought suspicion upon himself. However, for Point B, the Magistrate agreed with the Prosecution that the Appellant had brought suspicion upon himself for the following reasons[2]:-

“a) He (the Appellant) barely knew the Passengers, and did not have much personal information about them;

b) He worked as a Lalamove/ Gogovan driver, but at the material time, he was hired by the Passengers privately for the trip at the costs of HK$200. The Vehicle belonged to a friend of his boss. He knew nothing about the trip, not even the destination. He only knew the general direction of the trip and he was not familiar with Yuen Long and Tuen Mun area. He did not use any application (commonly known as “App”) when he took the job.

c) If D1 was genuinely working as a Gogovan/Lalamove diver [sic] (should be driver), the cost and the profit of the trip would be his major concerns; however, he did not use the App to assist him to check and calculate the cost of the trip.

d) He almost knew nothing about the Passengers, and then he should have used the App to secure the payment, like a usual call.

e) It would be absurd for the Passengers failing to provide the destination of the trip as it affected the cost of fuel and his working time; however, D1 simply paid no heed to them.”

9.  The Magistrate said that he approached the Appellant’s case with common sense and eventually decided to refuse the costs application for Charge 1 on the basis that the Appellant had brought suspicion upon himself[3].

Grounds of appeal

10.  The Appellant’s solicitors in the notice of appeal raises two grounds: the Magistrate failed to properly assess that the Appellant was merely following the police instructions when he slowed down the Vehicle (Ground 1); and that the Appellant’s actions might raise some suspicion but not in relation to Charge 1 the drug trafficking charge (Ground 2). Mr Allan for the Appellant in the two perfected grounds and written submissions basically argued that the Magistrate erred in law and in his analysis of the facts in refusing the Appellant’s costs as there was nothing to suggest that the Appellant brought suspicion on himself in respect of the ride order, and that Charge 1 was dismissed on the Prosecution’s withdrawal with no evidence presented in a trial against the Appellant.

My Decision

11.  I have already considered all the written submissions by the parties and shall dispose of this appeal by way of “rehearing” as required by the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki[4].

12.  The Magistrate in his reasons had correctly identified the relevant legal principles on the questions of costs in cases where the prosecution withdrew the charge, by referring to Secretary for Justice v. Lam Chiu Fong [5] and HKSAR v. Chen Fen [6].

13.  In cases where charges are withdrawn, the starting consideration is the same as where there has been an acquittal, namely, that there should be an award of costs in favour of the person charged unless there is positive reason for making a different order. Where the essential facts are realistically in dispute, and the person charged has not by his conduct brought suspicion on himself or led the investigating authorities to believe that the case against him was stronger than in fact it was, then when a charge is withdrawn the costs discretion ought to be exercised in favour of that person[7].

14.  A positive reason for not awarding costs to the defendant upon an acquittal exists where the defendant has brought suspicion upon himself. A court, exercising the discretion with regards to costs, must look at the relevant conduct of a defendant so long as that conduct is relevant to the charge. The conduct most relevant was the defendant’s conduct during the investigation and at the trial, as well as the conduct which formed part of the setting for the charge laid against the defendant prior to the investigation and trial stages[8], which referred to the well-settled principles in authorities on costs in criminal cases such as Tong Cun Lin v HKSAR[9], Ting James Henry v HKSAR (No 2)[10] and HKSAR v Chan Kam Ching (No 2)[11].

15.  It is important to note that the test is not whether the evidence would have been sufficient or probably sufficient to secure a conviction, but whether the circumstances raising the suspicion were enough to justify the court in exercising its discretion against granting the defendant costs[12].

16.  Ground 1 is in essence related to Point A which had already been decided by the Magistrate in the Appellant’s favour. In other words, the Magistrate did not consider the Appellant’s driving manner at the scene had brought suspicion upon himself. The matters raised by the Appellant or his complaints against the Magistrate under Ground 1 were not reasons for which the Magistrate refused him costs. Ground 1 is of no merits for this appeal.

17.  For Ground 2, Mr Allan for the Appellant submitted that the Magistrate erroneously found that the manner in which the Appellant accepted the ride order was suspicious, and wrongly placed great weight and emphasis on this matter in his assessment of the costs application. It is submitted that the Magistrate reached his finding that the Appellant had brought suspicion upon himself by relying on his own opinion on how the ride order was processed or should be processed. The Magistrate erroneously speculated on issues concerning the ride order and how it happened, which in any event was too remote to bring suspicion on the Appellant in relation to Charge 1. It is also submitted that there was no clear indication that the Appellant knew or was given a clear final address, which would be consistent with his innocence.

18.  In the present case, no evidence was presented at the proceedings for Charge 1 the drug trafficking charge because this charge was withdrawn. Nevertheless, the Magistrate was entitled to, and in fact should, consider the materials put forward by the Prosecution during the costs application, including the brief facts (the “Amended Allegation” dated 29 August 2023) as well as the Appellant’s VRI, both of which were not disputed by the defence[13].

19.  Apart from and in addition to those circumstances considered by the Magistrate, I agree with the Respondent that the Appellant’s act of driving in the wrong direction added to the suspicion brought upon himself. It was generally an unusual driving behavior which could raise suspicion in the circumstances of this case that the Appellant being the driver was attempting to avoid the police, in particular when there were in fact drugs in the Vehicle which were subsequently thrown out and recovered by the police.

20.  As disclosed by the Appellant in his VRI, the drugs were thrown out by a passenger whom the Appellant permitted to be on board the Vehicle, and that the Appellant got involved in this case as a result of a ride order which was accepted by the Appellant under suspicious circumstances. Those suspicious circumstances had already been correctly identified by the Magistrate as I had summarized above, in particular the Appellant did not know the Passengers well but privately accepted their ride order for HK$200 without even knowing the destination.

21.  As rightly observed by the Magistrate, it is a matter of common sense that a driver being hired must consider the cost and profit of a trip when accepting a ride order. The passenger’s destination is a crucial factor that would impact the fuel cost and the driver’s working time. Without knowing the destination, the distance and the route, the Appellant would not have been able to assess (let alone agree on) if a HK$200 fare was reasonable and acceptable. Also, without knowing the destination, the Appellant being the driver might be directed to go to an unfamiliar or even unsafe area. It is therefore wholly unreasonable for anyone in the position of the Appellant to have accepted that HK$200 fare in private for the ride order without knowing the destination in advance. As such, the Appellant’s version of accepting the ride order in question is apparently doubtful and suspicious.

22.  There is clear and sufficient basis for the Magistrate to come to conclude that the Appellant had brought suspicion upon himself in respect of Charge 1. I am not convinced at all by the Appellant’s arguments that the Magistrate had speculated on any issues concerning the ride order. Ground 2 fails as well.

23.  I have considered all the circumstances and agreed with the Magistrate’s reasoning and conclusion on this costs matter. This appeal against the order refusing costs is without merit and is hereby dismissed. The Magistrate’s order for refusing the Appellant’s costs for Charge 1 should stand.