HKSAR v. SO SIU YUEN

[English Translation – 英譯本]

HCMA 63/2021

[2022] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 63 OF 2021

(ON APPEAL FROM KCCC 2191 OF 2020)

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J U D G M E N T

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Background

1.  The appellant was convicted after trial for an offence of Criminal Damage. He was fined $3,000 and ordered to compensate PW1 in the sum of $15,000 (“Compensation Order”).

2.  He appealed against conviction, sentence and the Compensation Order.

3.  In the appeal hearing, the appellant applied to withdraw the appeal against conviction and sentence and only continued with the appeal against the Compensation Order. Under the circumstances that the respondent did not oppose, I granted the application of the appellant.

Prosecution case

4.  At around 2 pm, on 23 August 2020, PW1 parked his BMW on the road opposite a refuse collection point at Peace Avenue near his residence.

5.  At around 4:30 pm the same day, when PW1 fetched his car, he found a cigarette butt on the bonnet of the car. Having brushed it off, he saw a yellow stain. As he thought that it was not a severe damage, he intended to clear it after he was back home in the evening.

6.  On that evening, he was unable to remove the stain with water, car washing liquid or car wax.

7.  Having watched the footage captured on the dashcam, PW1 found the appellant throwing the relevant cigarette butt to where the stain was on the bonnet. PW1 also found four cigarette butts at the windscreen wiper jets of the car.

8.  PW1 tried to remove the stain by other means, but to no avail. Upon his enquiry of the BMW Service about how to deal with the stain, the service centre came up with an oral quotation for a repairing fee of about $15,000 to $16,000, due to the fact that the coating of the bonnet was burnt through and the car paint was also burnt.

9.  Another footage captured on the dashcam revealed that the cigarette butt landed on the bonnet with smoke coming out, and obviously it had not stopped burning.

10.  PW1 reported the case to the police on 25 August. A few days later, he saw the appellant leaning against a 7-seater car smoking and drinking at the location of the offence. The appellant dressed the same way as what was captured on the dashcam. PW1 informed the police right away. Police officers arrived in about 5 minutes and brought the appellant back to the police station.

Defence case

11.  The appellant elected to give evidence, but did not call any defence witness. He did not dispute that he was the one captured on the dashcam.

12.  The appellant contended that originally he intended to throw the cigarette butt to a rubbish bin, but as it got out of his hand, it was thrown to the bonnet of PW1’s car.

13.  The appellant agreed that he had not put out the cigarette, before he threw the cigarette butt to the bonnet of PW1’s car. The cigarette butt was still burning when it landed on the bonnet of PW1’s car, but he said it would probably stop burning soon.

14.  The appellant did not agree that the cigarette butt was purposely thrown to the bonnet of PW1’s car, nor that a burning cigarette butt would cause danger to a car. The appellant contended that a car would not be burnt and damaged unless a cigarette butt landed on the mirror surface or where the washer jets are. The appellant did not agree that the relevant cigarette butt was at a high temperature either. He emphasised that at the time of the offence, he had smoked the cigarette to its end.

15.  The appellant said that he saw the cigarette butt land on the bonnet of PW1’s car, but since the car for which he had been waiting happened to come, he did not pick it up and throw it into a rubbish bin before he left.

The ground of appeal

16.  The ground of appeal of the appellant basically is that the Compensation Order of $15,000 is not reasonable.

Discussions

17.  In respect of the Compensation Order, the Magistrate said this:

“79. Section 73 of the Criminal Procedure Ordinance (Cap. 221)  empowers the court to order a convicted person:

“to pay to any aggrieved person such compensation for—

(a)  personal injury;

(b)  loss of or damage to property; or

(c)  both such injury and loss or damage,

as it thinks reasonable.”

80.  According to the above principle, Mr Tsang in the present case should be compensated for the damage to his car. However, the court has also considered in the present case whether a compensation order should be made, or it should remain with Mr Tsang himself to bring civil claims against the defendant for the relevant monetary loss. I well appreciate that the making of restitution by the defendant is truly painful to him, but it is equally painful to the innocent victims to commence civil claims to recover their loss.

81.  As Beeson J pointed out in HKSAR v Ng Wan Lung, it is incumbent on the defendant to meet the Compensation Order and face the consequences of what his crime means to the victim. In HKSAR v Liu Suet Fun, Acting Chief Judge of High Court Yeung (as he then was)  also said that the purpose of making a compensation order by the court in a criminal case is to require the defendant, in a situation where liability is clear, to pay the victim for the reasonable financial loss within his means, avoiding the victim having to claim for the loss against the defendant in civil actions.”[1]

The Mr Tsang referred to in the extract is PW1, while the defendant referred to in paragraph 80 is the appellant.

18.  The Magistrate has rightly stated the relevant Ordinance, namely section 73 of the Criminal Procedure Ordinance. I will simply name it as “Compensation Provision”. Of course, it is in the discretion of the court as to whether a compensation order should be made under this provision. The appellant did not dispute his conviction, and therefore he could not possibly dispute the compensation order in the present case which the Magistrate has the power to make under this Compensation Provision. However, in the course of the Magistrate using or deciding whether to use this power, there are some aspects which I must look into. They involve whether the appellant had ample opportunity to make representation in respect of whether or not the Magistrate should make the Compensation Order, and the amount ordered as compensation in the case.

19.  After the appellant had been convicted in the original trial, the prosecution applied for compensation of $15,000 to PW1 as the expense for repairing the damage to the bonnet of his car. The Magistrate therefore made enquiries into the appellant’s family background and financial means. This was done before he decided to make the Compensation Order. The way he did it might have given others a wrong impression that he had decided to make the Compensation Order before he heard from the appellant his representation in respect of whether the application of the prosecution should be granted. I understand that it was not the original intention of the Magistrate, as a fine was eventually imposed on the appellant in respect of the offence. The enquiry obviously was for the purpose of considering one of the factors in determining the amount of fine.

20.  Apart from hearing the reasons for mitigation from the appellant, the Magistrate also enquired of him about his views on the Compensation Order of $15,000 sought by the prosecution. There was such a conversation between them[2]:

“Coram: Right. A compensation order of $15,000. Do you have anything to say?

...

Defendant: Of course not, $15,000 plus for just throwing a cigarette butt. He repairs it for himself and forcibly extorts money from me. Now here is what I said about him.

Coram: So, nothing to say. Is that right?

Defendant: Right. It is basically extorting money from me. Just for throwing a cigarette butt, it doesn’t have to take so long time to repair. Just wipe it and it’s okay. Well, how come he’ll have to repair it for $10,000-odd. That is, it’s an express extortion of money from me by taking photos of me throwing cigarette butt. Yet, on the contrary – on the contrary I’ll sue him in return…

Coram: Anything else to add?

Defendant: No more. I think I shouldn’t be fined so much. It’s utterly impossible.

Here, the defendant is the appellant, and Coram is the Magistrate.

21.  It followed that the Magistrate imposed a fine and a Compensation Order on the appellant.

22.  Under the Compensation Provision, the court itself, or upon the application by the prosecution, may consider ordering a defendant to compensate an aggrieved person. In the case of the former, the court should inform the prosecution and the defendant of its views, which will be followed up by the prosecution. If the amount of compensation is already known at the time, the defendant must be informed of it.

23.  If a defendant is unrepresented, the court should briefly explain to him the contents of the Compensation Provision. No matter whether the offer of compensation has been put forward by the court or the prosecution, the prosecution should make representation on the relevant grounds in court. The defendant may respond to these grounds and put forward his own grounds. A decision will then be made by the court.

24.  In the process, it is the prosecution’s responsibility to prove that the aggrieved person has suffered the damage or loss as referred to in the Compensation Provision. However, the standard of proof is not that on the balance of probabilities as in civil claims. In R v Thomson Holidays Ltd[3],Lawton LJ said that:

“Whenever the making of an order for compensation is appropriate, the court must ask itself whether loss or damage can fairly be said to have resulted to anyone from the offence for which the accused has been convicted or which has been taken into consideration.”

25.  In HKSAR v Liu Suet Fun[4] cited by the Magistrate, the Court of Appeal of Hong Kong adopted this view and pointed out, after referring to Rowlston v Kenny[5], that when the question of compensation is taken into consideration in criminal cases, the court should give the decision based on common sense[6]. That is to say, the prosecution must prove, only according to the standard of common sense, that the damage or loss as referred to in the Compensation Provision can fairly be said to have resulted to the aggrieved person from the offence for which the defendant has been convicted.

26.  In respect of the amount of compensation, it is also pointed out in Liu Suet Fun that the court does not have to consider the exact amount of loss on the basis of civil claims, but should act in a common sense way in a practical and general situation[7].

27.  In the case of an unrepresented defendant, the court should consider, pursuant to the principle of justice, making an enquiry of the defendant about whether there is any need for him to seek legal advice on the issue of compensation and to engage lawyers to act for him. This is especially important when a substantial amount of compensation is involved. If the defendant indicates that there is a need, the court should consider adjourning the case for a reasonable time, so as to enable the defendant to prepare for it.

28.  In the present case, PW1 did not produce a written quotation for repairing the bonnet of his car, but, when giving evidence, only referred to the information from the BMW Service that the coating of the bonnet was burnt through and the paint was burnt, hence the repairing fee was $15,000 to $16,000. The most ideal approach of course is for PW1 to ask for a written quotation from the service centre and provide it to the court and the appellant.

29.  PW1 made an explanation in this respect. Having considered the relevant circumstances and his explanation, the Magistrate accepted what he said:

“76. In respect of the compensation order, I noticed that the quotation for repairing the damage in the case is an oral instead of a written one from the service centre. Mr Tsang said that for a request of written quotation from the service centre, 10% of it has to be paid as quotation fee. Mr Tsang therefore only asked for an oral quotation from the service centre. According to the service centre, the coating of the bonnet was burnt through and the car paint was burnt, hence repairing fee of $15,000 to $ 16,000.

77.  Mr Tsang further indicated why he had got the quotation from the BMW Service, the manufacturer, and the reason was that it was a brand-new car when it was bought, and it had been used on the road for just a year or so at the time of the incident.”

30.  These are the statement of findings made by the Magistrate. They are totally in line with the principle referred to in Liu Suet Fun. I see no reason to interfere with it.

31.  Although the appellant was unrepresented at the original trial, and the Magistrate did not remind him that he could seek legal advice or engage lawyers to act for him, the Magistrate had explained to him the relevant situation and gave him ample opportunity to make his representation and put forward his ground against the application of the prosecution. The appellant did so and indicated in the negative when the Magistrate made enquiry of him about whether he had anything to add. The approach of the Magistrate of course was not the most ideal, however, in the circumstances of the present case, it was already sufficient for the appellant to advance his ground, and it did not do anything unfair to the appellant.

32.  I find the Compensation Order imposed by the Magistrate to be totally correct and consistent with the principles of the Ordinance and the authorities.

33.  The ground of appeal is not substantiated.

Conclusion

34.  I dismissed the appeal and affirmed the conviction, the sentence and the Compensation Order.