HKSAR v. SHIU CHI KAI AMAN

HCMA 202/2019

[2020] HKCFI 2817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 202 OF 2019

(ON APPEAL FROM KCS NO 31738 OF 2018)

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J U D G M E N T

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1.  The appellant (a lorry driver) was acquitted after trial before a magistrate of a summons on careless driving (which allegedly resulted in a collision with a taxi travelling in the same direction on a left-side lane). The appellant asked for costs but was refused. He now appeals against the refusal of costs order.

2.  At trial, the appellant was represented by a counsel different from the one now representing him; though the firm of instructing solicitors remains the same one.

THE PERFECTED GROUNDS OF APPEAL

3.  There are two perfected grounds of appeal.  They are:

(1)  The learned trial magistrate erred in law and on the facts, resulting in the erroneous application of the general principle that costs should follow the event; and costs should be awarded to a defendant who has been acquitted of a summons; and

(2)  The learned trial magistrate erred in law and on the facts; in finding the Appellant had brought suspicion upon himself.

Reasons for Refusing Costs

4.  The magistrate gave his reasons for refusing costs in the Statement of Findings, as follows:

“5. I watched P4 [video from the taxi’s dash camera] carefully many times. I found if I used the central dividing dotted line between the left third and fourth lanes of Chatham Road North (the “Dotted Line”) that appeared on the right front part of the Taxi as reference, it moved from the right front corner of the Taxi towards its middle front part. It looked like just before the Accident, the Taxi drifted to the Dotted Line on its right. Accordingly, I concluded that it was possible for the Taxi moved so close to the Dotted Line on its right, or might even have passed it slightly, that caused the Accident.

6.  I acquitted [the appellant] for his benefit of doubt.

7.  However, I also found [the appellant]’s driving manner was very suspicious on the following grounds.

8.  First, I did not observe [the taxi driver] made any substantial change of direction before the Accident, which meant [the appellant] was driving very close to the Dotted Line or he could have crossed the Dotted Line and caused the Accident.

9.  Second, the above observation was supported by the fact that [the taxi driver] steered to left once after the Accident, then stopped on the Dotted Line’s left with a healthy margin.

10.  Third, after the Accident, [the appellant] drove away and entered into the left third lane without turning on his left indicator, which showed [the appellant] was required to enter into the left third lane at the material time.

11.  I found [the appellant] brought suspicion upon himself and rejected his costs application.”

MY CONSIDERATION

5.  I have considered the submissions of both sides.

On Ground 1

6.  The appellant relied on para 12 of HKSAR v Strachan, HCMA 462/2018, to say that once a magistrate acquitted a defendant on reasonable doubt, it cannot be said that the defendant brought suspicion upon himself and he was therefore entitled to his costs for the trial.  My reading of the said para 12 suggests that the passage relied on was only a submission made by the counsel in that case and was far from being a principle.

7.  The appellant also complained that the magistrate had taken into account matters which relate to materiality of the incident (summons) itself and tend to undermine the acquittal.  The appellant, relying on the “governing principles” in Tong Cun-lin v HKSAR (1999) 2 HKCFAR 531, submitted that the most relevant factors that the magistrate should consider must be the appellant’s general conduct during the investigation and at the trial, and not at the time of the incident.

8.  Respondent disagreed and cited the case of HKSAR v Lau Tsz On [2017] 3 HKLRD 243, 250-1 where Barnes J made the following observations:

“16. In Ting James Henry v HKSAR (2007) 10 HKCFAR 730, the Court of Final Appeal pointed out at [16]: “It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionary exercise. However, it is incorrect to suggest that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such c/onduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal.” ” (emphasis added)

9.  The principle enunciated in Ting James Henry must be right and is in perfect unison with the general principles expressed in Tong Cun-lin.

10.  In conclusion then, there is no maxim to say that “costs should be awarded to a defendant who has been acquitted of a summons”. Rather, the correct approach remains that costs should normally be awarded in favour of an acquitted defendant unless one of the following positive reasons exists to deprive him of trial costs:-

(1)  The defendant brought suspicion on himself/herself;

(2)  The defendant was acquitted on a technicality; and

(3)  The defendant misled the prosecution into thinking their case was stronger than it was.

11.  Ground 1 therefore fails.

On Ground 2

12.  The main complaints here are (a) that the magistrate had failed to consider (or failed to show he had considered) the appellant was driving a large lorry and its width would have taken up much of his entire lane; and (b) the magistrate had not considered what exhibit P4 depicted namely, that the taxi moving to his right (towards the lorry) and then immediately stopped after turning back to his left (away from the lorry), inferring, contrary to the magistrate’s findings, that the taxi caused the accident.

13.  The respondent submitted that irrespective of whether PW1 was at fault, the appellant was also at fault because what he should have done was to keep a safe distance by positioning itself more to the right (there was another lane to the appellant’s right).  In failing to do so, the respondent argued, that appellant had contributed to the collision and brought suspicion upon himself.

14.  The respondent further submitted that an appellate court should not lightly interfere with the exercise of discretion by the trial magistrate, relying on Tong Cun-lin at 537A-D.

15.  I watched P4 myself more than once.  With regard to the first reason given by the magistrate, although the taxi driver might not have made a substantial change of direction before the accident, he has certainly made a significant steer.  Indeed, the magistrate observed in para 5 of the Statement of Findings that just before the accident, the taxi drifted to the right which might have caused the accident.  With respect to the magistrate, I do not know what he meant when he said in his second reason that the taxi stopped on the dotted line’s left with a healthy margin.  I simply could not see any margin because of the limitation of the angle of the camera.  And again with respect, I do not know what is meant by the appellant being “required to enter into the left third lane” in the third reason.

16.  As a result of the above observations, I cannot agree that any of the stated reasons for saying the appellant had brought suspicion upon himself can stand.

17.  In relation to the respondent’s submission that the appellant should as an act of caution position itself more to the right to keep a safer distance between the two vehicles.  With respect, this ignores the fact that the appellant’s vehicle was in fact a garbage truck (though more conveniently labelled as a lorry) and a gain on the left is a loss on the right.

18.  In my opinion, the cautious thing to do, subject to unpermitting circumstances, was for either of the vehicles to desist (or “let”) by reducing speed so that the other vehicle can speed ahead thus avoiding the narrow side-gap between the two vehicles.  Here, the video shows that the lorry was originally ahead of the taxi (though not by too large a margin) when the two lanes converged side-by-side but shortly thereafter, the taxi took the lead.

19.  Ground 2 is made out to the extent that the magistrate had given inadequate reasons for finding that the appellant had brought suspicion upon himself.

20.  Taking everything into consideration, in the capacity of a re-hearing judge, I do not adjudge that the appellant brought suspicion upon himself.  He shall have his costs of trial.

CONCLUSION

21.  For the above reasons, the appeal against refusal of costs (of trial) order is allowed.  The appellant is to have costs of trial, quantum to be taxed if not agreed.

22.  As for costs of appeal, I make an order nisi that the appellant is to have costs of appeal, quantum to be taxed if not agreed.  The order nisi shall become absolute after 14 days unless before then the respondent files a notice of opposition.