HKSAR v. PAO HUI MING AND OTHERS

HCMA506/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 506 OF 1998

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J U D G M E N T

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1. The three Appellants were charged with offences of attempting to mislead a police officer, and in addition, the 2nd Appellant was charged with careless driving and driving a vehicle when the alcohol content in her blood was above the statutory limit. They were acquitted by Mr Bruce McNair in Eastern Magistracy. After their acquittal, an application was made on their behalf for costs to be awarded to them. This application was refused by the learned Magistrate. It is against that order that the Appellants now appeal.

2. The principles which guide the award of costs to acquitted defendants are clear, and I need not repeat them here. Suffice it to say that after the passing of the Costs in Criminal Cases Ordinance in 1997, the approach to costs being awarded in the Magistrates Courts is now the same as the approach to costs to acquitted defendants in the District Courts and in the High Court, namely that costs should normally follow the event unless there are positive reasons for refusing them. One of the reasons for refusing costs is whether the conduct of the defendant was such as to bring suspicion upon himself.

3. The learned Magistrate was wrong to have imposed upon the Defendants the burden of showing good reasons for awarding costs to them, and if, when he was repeatedly emphasizing that there was a prima facie case, he was suggesting that the prosecution was justified, then that approach is also wrong because since the passing of the Ordinance, the test is not whether the prosecution is justified, it is simply that costs should follow the event and that an acquitted defendant is entitled to costs unless the positive reasons are applicable.

4. In the present case, what had happened was that a Mercedes Benz parked on Leighton Road was collided into by a BMW at 3.30 am on the morning of 28th December 1997. As Mr Chan, appearing for the prosecution/ Respondent, has remarked, traffic at that time in the morning must have been very light, and so the person driving the BMW must have been at least careless to have collided into the parked Mercedes. Inside the BMW were the three Appellants and another lady. After the collision, PW1, a resident who lived nearby, came onto the scene and in his evidence in Court said that he saw the 2nd Appellant come out from the driver's seat and inasmuch as he had talked to that person for some minutes, he was able to positively identify her as the driver of the BMW. On the other hand, at the scene the 1st Appellant admitted to the police that she was the driver and not the 2nd Appellant. On that admission by the 1st Appellant alone, she would have been, irrespective of what the prosecution's case was, guilty of careless driving. The 1st Appellant was then asked by the police to provide a breath sample, and on twenty occasions from 3.39 a.m. to 4.52 a.m., attempts were made to obtain breath samples from her, but all these attempts were unsuccessful. At the end of that futile exercise, the 2nd Appellant was arrested by the police for failing to provide a sample.

5. Mr Ng, appearing for the Appellants, has submitted that if in fact it was the Appellants' case that it was the 1st Appellant who was driving, then it would have been in their interest for the 1st Appellant to provide a breath sample to the police so as to substantiate or to reinforce that claim that she, the 1st Appellant, was the driver.

6. Whatever the reason for the unsuccessful attempts was, I agree with Mr Chan, appearing for the Respondent, that there could well have been a motive on the part of the 1st Appellant to delay the process of obtaining a sample from her because it is common knowledge that the concentration of alcohol in a person would decrease after a lapse of time. In the event, the 1st Appellant took up one hour and thirteen minutes of the police's time when the police tried to obtain a breath sample from her. At some time after or during that futile exercise, the breath sample of the 2nd Appellant was taken by the police and the result showed that she was well over the limit. She had 77 micrograms of alcohol in 100 millilitres of breath. It is not clear from the evidence when the sample from the 2nd Appellant was taken, but the evidence shows that it was at least some time after 4.15 a.m. that it was done. If it was taken at 4.15 a.m., that of course would have been during the futile attempt to obtain samples from the 1st Appellant. If it was taken after 4.52 a.m., then it would have been well after the futile attempts to take samples from the 1st Appellant.

7. In any case, as Mr Chan submitted, it could well have been the motive on the part of the 1st Appellant to delay the process so as to help the 2nd Appellant with her alcohol content. It must have been clear to the Appellants at the scene that it was the prosecution's case that it was the 2nd Appellant who was the driver of the BMW.

8. When PW1 descended on the scene, he saw the BMW reverse from its former position of being in contact with the parked Mercedes. And rightly or wrongly, PW1 construed that as a possible attempt by the driver of the BMW to flee the scene of the incident. Mr Ng has submitted that that could not have been so because events showed that in fact the BMW was incapable of being driven for a long distance because of the damage sustained by it after the collision with the Mercedes Benz.

9. Be that as it may, I am of the view that at the time PW1 was entitled to come to the conclusion that the driver might have attempted to flee. I mention these matters as matters which, in my view, are matters which show that the conduct of the three Appellants at the scene brought suspicion upon themselves. The learned Magistrate, quite clearly, was well aware of these events, and in my judgment, was entitled to conclude that these were matters which showed that the Appellants brought suspicion upon themselves.

10. I would not comment on the merits or demerits of the prosecution, or whether the Appellants were fortunate that the evidence of the two prosecution witnesses as regards identification was such that the Magistrate, quite properly, found that he had a reasonable doubt as regards the identification of the driver which resulted in all charges being dismissed. But I think it is germane to point out that when the learned Magistrate wrote his reasons for decision he did say that in fact, on the balance of probabilities, he believed that the Appellants were guilty of the offences as charged. He was firmly of the view that the Appellants' actions did cast suspicions upon them.

11. I do not criticize Counsel and Solicitor for launching the appeal because it is obviously upon the instructions of the lay clients that the appeal was launched. I think it suffices that I have commented on the Magistrate's view of the fact that he considered that the Appellants were fortunate that all the charges were dismissed when the whole incident could have been viewed as quite a serious incident involving either gross carelessness on the part of the driver, or involving a person driving a vehicle whilst well under the influence of alcohol. I dismiss the appeal.