HKSAR v. POON WING LAM AND ANOTHER

HCMA520/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 520 OF 2006

(ON APPEAL FROM STS 10623 & 10625 OF 2005

AND STS 10626-8 OF 2005)

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REASONS FOR JUDGMENT

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1. The 1^st appellant faced three summons (STS10623-5/2005).  STS10623/2005 and 10625/2005 concerned the offence of “Failing to ensure proper installation of outriggers” while STS10624/2005 concerned the offence of “Failing to provide person with safety belt and independent lifeline”.  The 1^st appellant pleaded not guilty to all three and was convicted of the offence in STS10624/2005.  No appeal lies from this conviction.

2. The 2^nd appellant also faced three summons (STS10626-8/2005).  The offences alleged are identical to those faced by the 1^st appellant.  The 2^nd appellant also pleaded not guilty and was convicted of the offence of “Failing to provide person with safety belt and independent lifeline”.  No appeal lies from this conviction either.

3. Both appellants applied for costs in relation to the offences they were acquitted of and the learned magistrate refused their applications.  The appellants appealed against the learned magistrate’s orders.

4. After hearing submissions I allowed the appeal and ordered that both appellants to have costs of and occasioned by the relevant summons, to be taxed if not agreed.  I now give my reasons.

Background

5. The 1^st appellant was the subcontractor and the 2^nd appellant the principal contractor of the site in question.  The particulars of the relevant summons alleged that where outriggers were used at the site, the appellants“did fail to ensure that the suspended platform was not used for carrying persons, unless outriggers were firmly anchored at the inner end”.

6. The prosecution case was that the L-shape support for the two working platforms in question merely rested on the top edge of the parapet wall without any anchor or fixing.  The prosecution relied on some photographs taken at the site by an Occupational Safety Officer and the expert evidence of Mr Mok Siu Kin.  Mr Mok’s witness statement was admitted into evidence (P.6).

7. In the statement Mr Mok has this to say :

"	(iii)	The L-shape supports under complaint only rested on the top edge of the parapet wall without any anchor or fixing.  The supports were only held in position with some back-tie and side fixing rope.  When the supports are being loaded, they are liable to displacement.  This may lead to possible tilting or even collapse of the supports and causing unstable movement and operation of the [suspended working platforms].
	(iv)	Under the Code of Practice for Safe Use and Operation of Suspended Working Platforms, there are some specific requirements for outriggers in Section 5.3.8.  With the L-shape supports being tied back with ropes, I do not consider that the supports had been firmly fixed in the inner ends and fulfilled the requirement stipulated in the Code of Practice.” [Emphasis added]

8. When the trial commenced on 24  April2006, the defence disclosed to the prosecution, for the first time, an expert report dated 24 April 2006 by Dr Eric C.H. Lim.  Due to the lateness of the production the trial did not commence immediately to allow time for the prosecution to read that report.

9. In his report Dr Lim said the L-shape support in the current design is considered a “lashing type outrigger”, which is not “outriggers as defined in the Code of Practice”.  Due to the presence of electrical wirings and conduits behind the parapet wall, it is extremely difficult to install outriggers as defined by the said Code of Practice.  The use of some nylon ropes to secure the L-shape support in conjunction with the lateral support frame provided adequate support in the current design to prevent any undue lateral or angular movement of the support system.  His opinion was that there was no evidence that the system in use was unsafe.

10. Dr Lim gave detailed description in the report with illustrations and calculations to support his opinion.  Basically, the main load of the suspended working platform is carried by the main suspension ropes as well as the auxiliary suspension ropes.  With the main suspension rope and auxiliary rope being stressed by the load of the cradle, the support would experience a force (i.e. a downward thrust) to press hard against the wall.  As there is also a lateral support to the lashing type outrigger, this prevents the support from swinging to any side of the wall.  The nylon rope would provide additional resistance against any lateral movement and any pulling away motion of the support, thus preventing any movement of the support.  Dr Lim is of the view that the lashing type outriggers in use were firmly secured to the inner side of the parapet wall by the nylon ropes.

11. In the afternoon of 24 April 2006, Mr Mok was cross-examined by Mr Philip Wong, counsel then representing both appellants.  The main thrust of the cross-examination was asking whether Mr Mok agreed with the opinion of Dr Lim.  While Mr Mok finally agreed — judging from the questions and answers (at P.77-79 of the Appeal Bundle) — that “the steel wire was attached to a concrete column”, he did not agree that the “downward thrust” would prevent the support from pulling away.  He contended that the lateral movement would displace the suspended platform.  (It should be noted that no photographs showing how the wire was attached to a concrete column was before the learned magistrate.  Some additional photographs taken by the same Occupational Safety Officer on the same day showing just that were produced for the first time during the hearing before me.  I will come back to this issue later.)

12. On the next day, Mr Neville Sarony SC informed the learned magistrate that he represented the 2^nd appellant in place of Mr Philip Wong.  Mr Sarony applied, without success initially, to have Mr Mok recalled for cross-examination.  The reason he gave to the learned magistrate at the time could be seen in the transcript :

“... I’ve taken a certain view which, in fairness, dictates that the engineer, Mr Mok, ought to be given an opportunity to consider a proposition….” (P.40 Line P)

“... What I’m seeking is your indulgence to, as it were, interpose Mr [Mok] on a recall, so that I can put to him certain matters, so that the prosecution case can then be seen as one whole part.  It’s mainly because I don’t want to get into a position where I am advancing propositions, or one of my witnesses is advancing a proposition, which Mr [Mok] has not had a reasonable opportunity to consider.  So it’s really a question of giving the prosecution witness a fair opportunity to consider certain aspects.” (P.41 Line A-E)

13. As I said, the application was unsuccessful initially.  After hearing evidence of Dr Lim the learned magistrate then allowed Mr Mok to be re-called and cross-examined by Mr Sarony.  Towards the end of the cross-examination, Mr Mok agreed that the “inner end” was anchored.

14. Bearing in mind that the whole basis of the prosecution case was that the “inner end” of the support was not firmly anchored, with this agreement from the prosecution expert, it is hardly surprising that that the two appellants were acquitted of the relevant summons.

15. It is convenient here to set out what the learned magistrate has said when he acquitted the appellants.  He related what Mr Mok had said about the L-shaped supports only rested on the edge of the parapet without any anchor or fixing.  He accepted the evidence of Dr Lim that it was not the case.  The structure was not “just resting there willy-nilly, as at first brush”.  He said the photographs seem to indicate “they were sort of put haphazardly together in place there by ropes that are tied to it”.  He referred to the fact that Mr Mok, when recalled, finally agreed that the wire that was connected to the column right at the back can be the inner end.  (P.33 Line N-S)

16. The learned magistrate also said :

“Whilst, as I said, at first blush it appears very sinister, this almost a make shift way it is set up, I am satisfied from the evidence, as it flowed – which was not originally before the court, I must admit- that it was not as flimsy as it may appear at first blush but, in fact, is a very good system with respect to the matter.” (P34 Line P-S)

Reasons for refusal

17. After setting out the background of the case, the learned magistrate gave the following reasons in refusing the application :

“It is accepted that costs should generally follow the event.  But I was of the view here that taking everything into account, the acquittal was based largely on technical grounds advanced lately into the trial.  I exercised my discretion in this regard.  I had looked at the conduct generally of the trial. – As I have referred to earlier the report of the defence expert (as voluminous as it was) was given to the prosecutor just before trial.  I accept that an appellant does not have to disclose his defence before that time, but the matter does not stop there.  The cross-examination by Mr WONG clearly shows that the main emphasis of the cross-examination was the force on the nylon rope (as shown in the photos produced.  Very little cross examination concerned the ‘technical aspects’. – But more importantly when Mr Sarony entered the case for the first time for the 2^nd appellant on the 2^nd and last day of trial where he sought to recall the respondent’s expert witness, the respondent and the court found out for the first time that the appellant would be advancing his case in a way that had not been put to the respondents expert (PW4).  To compound the matter, for the first time was introduced a ‘Supplementary Calculation Sheet’.  As I have referred to earlier it was obvious only at that late stage of the trial that the defence now raised was markedly different from that the court had been led to believe.  I was of the view that the acquittal was largely due to this ‘change of tact’ – a technicality.  It was the conduct of the appellant at the trial to which I have referred.

I was of the view that I should exercise my discretion and not allow costs in these circumstances.  I had weighed the justice of making or not making an order.  To my mind the appellants had needlessly and at some length on the first day of trial, contested the respondent’s evidence (especially PW4 – the expert), when the true defence ‘to the respondent’s and court’s surprise’ was only revealed the last day of trial, with fresh supplementary calculations – I declined to order costs.”

Applicable principles on costs

18. Section 3 of the Costs in Criminal Cases Ordinance, Cap. 492, provides that where a magistrate has acquitted a defendant, he may order that costs be awarded to that defendant.  In short, a discretion is vested in a magistrate.  Section 3 is similar in terms with section 5 (where a defendant is acquitted by a District Court Judge or a Judge of the First Instance of the High Court).

19. The Ordinance does not lay down the principles which govern the exercise of the magistrate’s discretion.  Before the enactment of Cap. 492, costs in criminal cases were governed by the now repealed section 73A of the Criminal Procedure Ordinance, Cap. 221.  The applicable principles in the exercise of the discretion whether to award costs were discussed in a number of cases : R v Ng Yui Kin & Others [1983] HKLR 356, R v Kwok Moon Yan & Another [1989] 396.  The Court of Final Appeal has, in the case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, affirmed and elaborated these principles.  These principles are again re-affirmed by the Court of Final Appeal in Hui Yui Sang v HKSAR [2006] 2 HKLRD 738.

20. The general rule is that the court should normally award costs to an acquitted defendant unless there are some positive reasons to deprive him of such costs.  Positive reasons include whether he has brought suspicion upon himself; whether his conduct has misled the prosecution into thinking that the case against him is stronger than it is; whether there is ample evidence to support a conviction but it is quashed on a technicality which has no merit.

21. In Tong Cun Lin, Litton PJ, when giving judgment of the Court of Final Appeal, elaborated on the “general conduct” of an acquitted defendant :

“What then are the governing principles?  When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges.  In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced.  This cannot be confined to any particular period of time.  Since, however, the discretion is being exercised in the context of an acquittal - the averments constituting the charges having been found by the jury as not amounting to the crimes alleged - it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc.  Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict.  The person in the best position to weigh those matters is clearly the judge himself.”

22. The same principles are applicable here.

23. It is also a general rule that an appeal court would be slow to interfere with the exercise of a discretion by a lower court : see e.g. Hui Yui Sang.

Rehearing or not rehearing?

24. The present appeal against an order refusing to award costs was brought under section 113(1) of the Magistrates Ordinance, Cap. 227.  An appeal under the said section 113 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so : see Chou Shih Bin v HKSAR, FACC No. 11 of 2004.

25. A question then arose — is an appeal against such an order a rehearing or not?

26. Mr David Leung, SGC for the respondent, drew my attention to section 19 of the Costs in Criminal Cases Ordinance, Cap. 492 where the legislation provides specifically for an appeal against an order awarding costs.  Rule 4 of the Costs in Criminal Cases Rules, Cap. 492A provides that an appeal against a magistrate’s order to award costs is heard at the Court of First Instance, with Order 55 of the Rules of the High Court (i.e. by way of an originating motion).  Such an appeal is by way of rehearing (Order 55 rule 3(1)).

27. In my view, where a magistrate refuses to award costs and an appeal against the order is brought under section 113 of the Magistrates Ordinance, it is a rehearing in the sense that the judge on appeal could look at all the evidence before the magistrate (and any additional evidence adduced on appeal).  The general rule that an appeal court would be slow to interfere with the exercise of a discretion by a lower court applies.  Where it is shown that the magistrate is entitled on the evidence before him to come to the conclusion which he did, taking into consideration all relevant matters, the appeal court would not interfere with the discretion exercised.  Where, however, it is shown that the magistrate has not exercised his discretion properly, or that additional evidence throws a different light on the matter, the appeal court would set aside the magistrate’s order.

Additional photographs

28. Before me the prosecution disclosed for the first time the additional photographs showing how the wire was connected to the column (P.117-120).  The defence were not even shown such photographs until shortly prior to the appeal hearing.  After viewing these, the L-shape supports certainly did not look as precarious or flimsy as suggested by those other photographs before the learned magistrate (P.105-113).  It was not clear whether the additional photographs were ever shown to Mr Mok.  However, bearing in mind that Mr Mok’s opinion was that the L-shaped supports “only rested on the edge of the parapet without any anchor or fixing”, it is hard to see how he could have given that opinion if he had seen the additional photographs!

Judgment

29. The prosecution came about when an Occupational Safety Officer took some photographs after a site inspection and eventually Mr Mok was asked to give his expert opinion.  Mr Mok gave his opinion without actually visiting the site and seeing the L-shape supports for himself.  If he had he would have seen the wire being attached to the column!  As the L-shape support is not something he is familiar with, and the Code of Practice did not have any such support illustrated, based on the photographs which were eventually adduced at the trial, Mr Mok was of the view that the “inner end” was not firmly anchored and the appellants were charged.

30. At the end of the day, the learned magistrate found that the system used by the appellants were “a very good system with respect to the matter”.  In other words, there is nothing unsafe about that system.

31. The learned magistrate has also found that the appellants have not brought suspicion upon themselves, which is clearly correct.  The learned magistrate was of the view that the defence was a technical one and the conduct of the defence was such that in exercise of his discretion he did not award costs to the appellants.

32. In my view, it is not correct for the learned magistrate to say it was only at the late stage that “the respondent and the court found out for the first time that the appellant would be advancing his case in a way that had not been put to the respondents expert (PW4)”.  The defence had not shifted.  The defence relied on the expert evidence of Dr Lim.  That was the same on day one and day two.  What was changed was the tactic used in cross-examination.

33. Mr Wong tried very hard to get Mr Mok to agree with the opinion of Dr Lim.  He challenged Mr Mok to give a “counter argument” to say Dr Lim’s opinion is incorrect.  He was not successful as Mr Mok just would not budge as far as the lateral movement was concerned.  Mr Sarony, however, endeavoured to get Mr Mok to actually agree with the opinion of Dr Lim, which he succeeded.  Mr Mok was cornered when calculations were put to him and he could no longer support his contention regarding the risk of lateral movement moving the suspended platform away from the wall.  It is not the case that no calculations were done in Dr Lim’s expert report.  Appendix II with the calculation was annexed to the report.  Mr Mok, when cross-examined by Mr Wong, said he did not do the calculation.  Dr Lim’s supplementary calculations only made the matter clearer.

34. The defence stance was always that while the L-shape supports differ from those illustrated in the Code of Practice, nevertheless they are safe systems.  Mr Mok, after the skilful cross-examination by Mr Sarony, agreed the “inner end” was anchored.  If Mr Sarony had not succeeded in having Mr Mok recalled for cross-examination, the scenario would have been one in which the learned magistrate would have been faced with two conflicting opinion and would have to decide if he accepted either one.  However, with the change of tactic and Mr Mok being recalled for cross-examination, the defence was that much stronger as they managed to get the prosecution “star witness” to agree with the opinion of the defence expert!

35. The Code of Practice provides guidelines for practitioners.  It does not mean that practitioners must install outriggers as illustrated by the Code.  The practitioners must, however, ensure that the outrigger was firmly anchored.

36. It is true that the defence did not disclose the expert report until the first day of trial.  Bearing in mind all the circumstance of the case, in particular the way the prosecution came about, the failure to disclose the additional photographs showing just how the wire was anchored to a column and yet charging the appellants for failing to have a firm anchor at the inner end, the lateness of the defence report would not and should not have affected the exercise of discretion.  To do so would tantamount to putting the burden of proof on the defence.  To be fair to the learned magistrate, though he mentioned the lateness, he did not refuse the application for costs on this basis.

37. The learned magistrate was not provided with the additional photographs which clearly showed the anchorage to the column, that evidence came from the defence (without photographs).  The photographs that were adduced before the learned magistrate painted a very different picture.  The learned magistrate was not aware of the fact the Occupational Safety Officer had taken photographs showing how the wire was anchored to the column.  Faced with those rather incriminating photographs, then having to deal with a change of counsel on the next day — particularly in view of the reasons given by Mr Sarony SC for wanting to re-call Mr Mok, I can fully appreciate why the learned magistrate has come to the erroneous conclusion that “the acquittal was based largely on technical grounds advanced lately into the trial”.

38. It is my judgment, on the evidence before the learned magistrate and the additional photographs before me, that the defence was not a technical one.  It was not the case that there was ample evidence to support a conviction but the appellants were acquitted on a technicality which had no merit.

39. I have already given my views as to the tactic taken by the defence.  The general conduct of the defence in the present case was not such that the appellants should be deprived of the costs upon acquittal.

40. For these reasons I set aside the learned magistrate order.  As the trial also concerned the other summons in which the appellants were found guilty, the appellants are only entitled to the costs of and occasioned by the relevant summons.