HKSAR v. JAVED, SHAHID

HCMA 218/2022

[2023] HKCFI 1179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 218 OF 2022

(ON APPEAL FROM KCS 30366/2021)

________________________

________________________

_______________

J U D G M E N T

_______________

Appeal Against the Refusal of Costs

1.  This is an appeal against an order of refusal of costs following an application by the prosecution to offer no evidence against the appellant for a summons for causing or permitting another person to use a private vehicle on a road on 3 April 2021 when there was not in force in relation to the use of that vehicle by that person such a policy of insurance or such a security in respect of third party risks as complied with the requirement of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272.

2.  There is no dispute that the facts of the case were as follows, the appellant was the registered owner of a private vehicle, SF 6048, which was involved in an accident in Kowloon on 3 April 2021 driven by a Kwan Kam Seng.  That vehicle was last insured between 9 October 2019 to 8 October 2020.  Therefore, at the time of the accident SF 6048 had not had any valid insurance coverage for about 6 months.

3.  The defendant was served the summons and pleaded not guilty, however, on the date of the hearing, the prosecution offered no evidence against the appellant on the sole ground that the only prosecution witness Kwan refused to testify in court.  Without his evidence, the prosecution had no choice but to offer no evidence.

4.  There is more to the background of the case.  At the time of the accident, the driver told the police that he had never met the owner of the vehicle and had been given the vehicle by another person.  The date of the accident was 3 April 2021 and according to immigration records, the appellant left Hong Kong on 21 April 2021 and only returned on 21 September 2021.

5.  As a result of what the driver of the vehicle during the accident told the police, the appellant was issued with a notice of investigation by the police in July 2021.  The appellant obviously received it because he replied to the police and promised that when he returned to Hong Kong, he would produce the third party insurance policy applicable to his vehicle SF 6048 to the police.  There is no dispute that after he returned to Hong Kong in September 2021, he failed to produce a valid third party insurance policy to the police.

6.  At no time has the appellant ever claimed by way of explanation that his vehicle was stolen or that he had sold it.  This is pertinent to this summons as any registered owner of a vehicle has the obligation to ensure there is a valid third party insurance policy as required by the Motor Vehicle Insurance (Third Party Risks) Ordinance.  The summons offence charged is a strict liability offence.  To have valid third party insurance is an obligation on every registered vehicle owner.  Here, the appellant let the insurance expire or lapse by 6 months but his vehicle was later involved in an accident on a public road.

The Magistrate’s Findings of Facts

7.  The magistrate set out the governing legal principles in awarding costs in his statement of findings on costs.  He correctly considered the principle that a defendant who is found not guilty is entitled to costs incurred unless there is a positive reason for depriving him. He identified one such ground as being where a defendant has brought suspicion upon himself.  He quoted from the relevant and leading authorities governing principles in awarding costs.

8.  It was relevant to the case to consider the appellant’s conduct after the accident and before the summons was issued.  That included what he told the police and what he should have produced to the police as was his statutory obligation as a registered owner of a private vehicle.  A court can take into account conduct in the exercise of the court’s discretion on costs.

9.  The magistrate found that the conduct of the appellant had brought suspicion upon himself and refused the application for costs.  What factors the magistrate took into account in reaching that finding included the fact the appellant was the registered owner at the material time.  The appellant was in Hong Kong at the material time, that is at the time of the accident.  When the appellant was contacted 3 months after the accident, he told the police that he would produce the valid insurance policy when he returned to Hong Kong.  When he returned to Hong Kong he did not and could not produce any policy to the police.

10.  At no time did appellant say that his vehicle was stolen or that he had sold it before the accident.  The magistrate noted the appellant as the registered owner had a statutory obligation to produce the third party insurance to the police upon enquiry and inform the police of any particulars of a driver of his vehicle as set out in section 16 of the Motor Vehicle Insurance (Third Party Risks) Ordinance.

Grounds of Appeal

11.  Mr William Allen, Counsel for the appellant, put forward perfected grounds of appeal.  The appellant essentially relies on the grounds that the magistrate failed to consider or consider sufficiently the general principle that costs follow the event and here, costs should have been awarded to the appellant.  Secondly, the magistrate erred in finding the appellant brought suspicion upon himself and he failed to consider or consider sufficiently the factual circumstances of the case.

The Respondent’s Reply

12.  The respondent was represented by Ms Janice Cheuk and she supported the magistrate’s findings, decision and reasoning behind his findings.  She set out the general rule that unless there are positive reasons, an acquitted defendant should be awarded costs.  She gave examples of what would be considered positive reasons and that would include where a defendant has brought suspicion on himself.  She reiterates that a defendant who is acquitted on a technicality can be a positive reason for not allowing costs.

13.  She states that a court however may not refuse a defendant’s costs application if it violates or undermines the presumption of innocence.  A magistrate always has a discretion to make an award of costs to the defendant where a charge has been withdrawn according to costs in Criminal Costs Ordinance, Cap 492.  In exercising that discretion and deciding an award of costs, a defendant’s conduct during the investigation stage may and should be taken into account.

14.  The respondent submits that as the registered owner of SF 6048, he should have known it was uninsured.  It did not have valid insurance for over 6 months which is a significant period of time.  His positive response to the police notice and informing the police that he would provide a valid third party insurance policy was conduct the magistrate could take into account.

15.  More importantly, the appellant had never denied his status as the registered owner.  The appellant had never mentioned or informed or reported to the police that his vehicle had been stolen or sold before the accident; instead he led the police to believe that he had insurance and would provide the policy to the police.

16.  Under such circumstances, the police were more than entitled to believe the appellant had permitted or caused the keys of the uninsured vehicle to be passed on to somebody else.  The driver Kwan could not have driven that vehicle the day of the accident without keys.

Discussion

17.  A magistracy appeal is conducted by way of a “rehearing” on the evidence before the magistrate and this would include findings on costs awards.  I can reconsider whether the appellant should be deprived of costs.  I do not propose to repeat the legal principles on costs which are abundantly clear and have been covered by counsel in their submissions for the appeal, in particular the respondent’s very succinct written submissions.  They were also covered by the magistrate.

18.  If a magistrate acquits a defendant after dealing with any offence, he may order that costs be awarded to the defendant.  The law confers on the magistrate a discretion by providing that a magistrate may make an order that costs be awarded.

19.  The magistrate here set out the factors behind finding a positive reason to deprive the appellant of his costs even though the prosecution offered no evidence.  Unless the magistrate considered matters that should not have been considered, I should be slow in interfering with the exercise of his discretion.

20.  In addition, I find nothing that indicates the magistrate has taken account of matters or facts erroneously or contrary to the presumption of innocence.  He has considered all relevant facts surrounding the summons and the investigation; all very properly.  I agree with the magistrate’s findings that there is a positive reason to exercise his discretion not to award costs to this appellant.  There are no merits in the grounds of appeal.

21.  After considering the facts and the appellant’s conduct, I would adopt the same approach as the magistrate.  I would reach the same conclusion.  This appeal against a refusal of costs is devoid of any merit and is therefore dismissed.