HKSAR v. CLEMENT, RICHARD MARK

HCMA 445/2022

[2024] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 445 OF 2022

(ON APPEAL FROM ESCC 2222/2021)

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JUDGMENT ON COSTS

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Costs

1.  The appellant was originally charged with assault occasioning actual bodily harm but the offence was amended to grievous bodily harm before trial. After trial, the appellant was convicted of the lesser charge, of assault occasioning actual bodily harm and sentenced to 8 weeks imprisonment.  He was granted bail pending an appeal.

2.  I allowed the appeal, quashed the conviction and set aside the sentence.  I give directions on any costs application.  I now deal with the costs application by the appellant.  I have received written submissions applying for the costs of the appellant’s trial and the appeal as well as submissions opposing the application.

3.  I do not intend to repeat the facts of the case nor my reasons for allowing the appeal.  There was much physical contact between both men on that bus that evening.  It started with the bus driver PW1 grabbing the appellant’s wrist to prevent him from tapping his octopus card and was followed shortly after by the appellant pushing PW1’s chest with both hands.  By then, the bus driver had called the bus company and made a radical decision to discontinue the whole trip inconveniencing the entire busload of passengers because of the appellant.

4.  I found on the evidence adduced, it was not proved beyond reasonable doubt the appellant committed the charge of assault occasioning actual bodily harm.  The CCTV footage did not support the evidence of the only prosecution witness, PW1.  A reading of the witness statement by the bus driver, PW1 as to a very material part of his evidence, the first serious assault by the appellant, which he repeated under oath in the witness box, was not supported by the CCTV produced by the prosecution.

5.  What is also important is that the appellant did give a statement under caution shortly after his arrest.  He gave evidence at his trial consistent with the contents of that statement.  I agree with the submissions made in this cost application that the contents by in large reflect the reasons for my judgement.

6.  The CCTV footage in my view supports the appellant’s evidence during the trial and submissions during the appeal that only after PW1 blocked the appellant’s path and restrained him from getting off the bus did he physically try to get past PW1.  Only after that did the appellant get physical with PW1.

7.  It is a well-established legal principle and the general rule that costs follow the event of an acquittal unless there is a positive reason for doing so.  I am of the opinion that the appellant did not bring suspicion upon himself nor was his conduct such that he misled the prosecution into believing that they had a stronger case then it actually was.  He was also not acquitted on a technicality.

8.  In particular, this is not a case where the conduct of the appellant either at the material time or during the investigation period was so reprehensible and deserving of condemnation to render an award of costs an affront to the administration of justice.

9.  Accordingly, having allowed the appeal after a hearing, I order the costs of the lower court hearing and those of this appeal be to the appellant, to be taxed by a master, if not agreed.