HKSAR v. CHOW CHI WAI

FAMC No. 18 of 2016

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2016 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM HCCC 458 OF 2013)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing we dismissed this application for leave to appeal and now provide our reasons. 

2.  Two vessels, “LAMMA IV” and the “SEA SMOOTH”, were involved in a collision tragically resulting in the loss of 39 lives. The applicant was the coxswain of “LAMMA IV” and he was charged with 39 counts of manslaughter by gross negligence and two counts (as alternatives to each other) of endangering safety of others at sea contrary to section 72 of the Shipping and Port Control Ordinance.[1]

3.  The jury acquitted the applicant of manslaughter and convicted him on the endangerment charge.  He was sentenced to 9 months’ imprisonment.  He sought an order for costs on the basis of his acquittal on the manslaughter charges.  DHCJ Keith rejected his application[2] and also refused a certificate for the purposes of leave to appeal.[3]

4.  Mr Gerard McCoy SC, appearing for the applicant,[4] submitted that the Judge incorrectly refused costs mainly on the ground that the prosecution had relied substantially on the same evidence in respect of both offences, calling for the same response from the applicant.  Counsel complained that the Judge had failed to consider whether the conduct of the applicant justified a refusal of costs[5] and also failed to give weight to the far greater importance of the manslaughter charges, leading to his incurring the costs of briefing specialist counsel and experts.

5.  The applicant sought leave to appeal on the basis of two questions said to be questions of law of great and general importance as follows:

Question 1

In a case of partial acquittal engaging s 6 Costs in Criminal Cases Ordinance, Cap 492, if there was a substantial overlap in the evidence led in relation to the charge for which the defendant was convicted, and those for which the defendant was acquitted, does that preclude an award of costs to the defendant?

Question 2

In a case of partial acquittal engaging s 6 Costs in Criminal Ordinance, Cap 492, is the relative disparity between the seriousness and the number of the offences for which the defendant was acquitted, and between that of the offence for which the defendant was convicted, a material consideration in favour of awarding costs to the defendant?”

6.  In refusing leave, DHCJ Keith held, in our view correctly, that neither question properly arises out of his ruling.  As to Question 1, his Lordship had decided that the fact that the evidence relevant to the manslaughter charges on which the applicant was acquitted would in any event have been led in prosecuting the endangerment charge on which he was convicted was a “highly material” factor, but not that it would “preclude an award of costs to the defendant”.[6]

7.  Similarly, in relation to Question 2, DHCJ Keith had expressly taken into account the “far more serious” nature of the 39 counts of manslaughter on which the applicant had been acquitted as compared with the endangerment charge on which he had been convicted.[7] 

8.  The Questions proceed on the erroneous premise that the Court may be able to lay down hard-and-fast rules on matters which are or are not “precluded” and matters which are or are not “material considerations” when dealing with costs in cases involving “partial acquittals”.  The power to grant or refuse costs on the accused’s acquittal after trial – including where he has been acquitted of some, but not all of the charges he faced – is of course discretionary and case-specific, as section 6 of the Costs in Criminal Cases Ordinance[8] indicates:

“Without affecting the power conferred on a magistrate under section 3(1)(c) or, on the District Court or the Court of First Instance under section 5 to order that costs be awarded to a defendant who is acquitted, where a defendant who is charged with the commission of more than one offence is acquitted of one or more than one but not all of any of such offences, the court may in relation to all or any of such acquittals order that costs be awarded to the defendant.”

9.  Guidance as to how that discretion is to be exercised can be found in a series of decisions by this Court.  Orders for costs in favour of acquitted defendants should normally be made unless there are positive reasons for not doing so.[9] Such reasons relate to the defendant’s conduct, a common example involving cases where the defendant’s conduct has brought suspicion on himself or misled the prosecution into thinking that the case against him is stronger than it is.[10]  Regard is had to the accused’s conduct at the investigation stage and during the trial,[11] but any conduct relevant to the offence charged, including the strength of the case against him and the circumstances under which he came to be acquitted, can be taken into account so long as it does not call into question the verdict of acquittal.[12]  The trial judge is usually in the best position to weigh such matters.[13]  The simple fact that there was adequate evidence to bring a charge does not provide a sufficient reason for depriving the person acquitted of his costs.[14]

10.  Such guidance applies equally to cases where the accused has been partially acquitted.  Thus, if the evidence establishing his guilt of certain offences also bears on his conduct in relation to the offences of which he has been acquitted, such evidence may be taken into account on the question of costs. 

11.  Thus, in Ting James Henry v HKSAR (No 2),[15] Li CJ noted that evidence of the conduct of an accused “which formed part of the setting for the charges laid against him” may constitute evidence of how he brought suspicion on himself.  And in HKSAR v Wong Tak Keung (No 2),[16] the accused’s conviction on a charge of conspiracy to traffick in dangerous drugs was quashed because of the extra-territorial situs of the conspiracy.  However, the evidence adduced on the conspiracy charge disclosed that he had inflicted severe beatings and torture on a 15-year-old drug courier in Australia and the Court held that such evidence of his conduct was relevant to the charge of which he had been acquitted and could be taken into account in refusing him costs.    

12.  In the present case, the allegations and evidence relied on by the prosecution for the manslaughter and endangerment charges substantially overlapped.  The prosecution case was that the applicant had failed to keep a proper lookout and to take any or any effective steps to avoid a collision.  As pointed out in the respondent’s skeleton argument, his conviction by the jury on the endangerment charge “must mean that they found that the prosecution had proved to the requisite standard that [the applicant’s] navigation of the vessel amounted to serious breaches of [the Collision Regulations] as particularised in the charges, and that such breaches endangered the safety of persons at sea.”  The jury may be taken to have acquitted on the manslaughter charges because they were not satisfied that those findings established gross negligence.  The Judge was, however, entitled to regard the applicant’s conviction on the endangerment charges as establishing conduct on his part bringing suspicion of liability for manslaughter on himself.

13.  Categorising the present case as one involving a “partial acquittal” raises no new issues of principle requiring the attention of the Court.  Leave to appeal was accordingly refused.