HKSAR v. LUK WANG KWONG

HCMA 1148/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1148 OF 2002

(ON APPEAL FROM ESCC 1970/2002)

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J U D G M E N T

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1. On 26 September 2002 this Appellant, who was represented by counsel, appeared before Ms Bina Chainrai in the Magistrate's Court at Eastern on a charge of dangerous driving to which he pleaded not guilty.

2. Following a submission of no case to answer, the Magistrate, taking the view that there was no case to answer on dangerous driving but that there was a case to answer on the lesser offence of careless driving, amended the charge to one of that lesser offence.

3. The Appellant elected not to give evidence. After hearing Defence counsel's final submission, the Magistrate, as she put it in her Statement of Findings, was not satisfied that the count of careless driving against the Appellant had been proved beyond all reasonable doubt. So she acquitted the Appellant. His counsel then applied for costs on his behalf. This application was opposed by prosecuting counsel. The Magistrate refused to award the Appellant costs. He now appeals against that refusal.

4. The Magistrate's Reason for refusing the Appellant costs are set out in her Statement of Findings, and are as follows:-

"3. The Prosecution case relied upon the evidence of PW1, Bok Tad Cheong, PW1 was knocked down at a zebra crossing by a car that was being driven by the Appellant. He remembered that he had looked before he had crossed the road, but he could not remember how far he had reached in crossing the zebra crossing before he was hit.

4. Deputy High Court Judge Longley, in HKSAR v. Leighton-China State Joint Venture, Magistracy Appeal No. 430 of 2002, said at page 3 of his judgment:-

"The learned Deputy Magistrate was aware of the relevant principles for the award of costs to an acquitted Defendant. They were repeated by the Court of Appeal in R v. Kwok Moon-yan & Lok Ma-chiu [1989] HKLR 396. They are that the power to award costs is in the unfettered discretion of the court, but the normal practice is that an order should be made for the payment of costs out of public funds unless there are positive reasons for making a different order. Positive reasons would exist (1) where the appellant's own conduct had brought suspicion on itself and it had misled the prosecution into thinking that the case against it was stronger than it was; or (2) where there was ample evidence to support a conviction but it was quashed on a technicality which had no merit."

5. Apart from the evidence of PW1, I had before me also the facts admitted by the Prosecution and Defence pursuant to Section 65C of Criminal Procedure Ordinance, Cap. 221, as well as a set of photos, Exhibit P2 and D1, a sketch, a medical report of PW1 and the record of interview of the Appellant, which was produced by agreement. PW1 was hit when he was crossing the road on a zebra crossing. It was a dark night, the road surface was wet. PW1 said that he had almost completed crossing the road and had reached the opposite pavement before he was hit - he was on his way to the Victoria Park. Under cross-examination, he wasn't sure. I was unable to draw any inference that he had almost completed crossing the zebra crossing. The other evidence I had before me was equally consistent with PW1's account as well as the Appellant's account. Although I believed PW1, I could not be satisfied beyond all reasonable doubt. Accordingly, I gave the benefit of the doubt to the Appellant and I acquitted him. In my view, the driving manner of the Appellant could be viewed with suspicion. I found that this was an appropriate case for me to exercise my unfettered discretion not to award costs to the Appellant. Accordingly, I dismissed his application for costs."

5. It cannot be said that the acquittal was based on a technicality. The Appellant was acquitted on the basis of a reasonable doubt as to his guilt. This is because the Magistrate was unsure as to whether the victim had, as the Appellant alleged when interviewed by the police, suddenly dashed out from the pavement and onto the zebra crossing and into the path of his car which had been travelling at about 20 kilometres per hour.

6. Although the Magistrate said that the manner of the Appellant's driving could be viewed with suspicion, that seems to mean no more than that she thought that the Appellant had probably driven carelessly although she was not sure that he had. In other words, she thought that the victim's evidence, which would have established the Appellant's guilt if such evidence was accurate, was probably true although not certainly so. Can such a view of the case against an acquitted defendant justify depriving him of costs on the basis that he had brought suspicion upon himself? In my view, it cannot. The discretion to refuse costs to an acquitted defendant may be unfettered when it arises, but it simply does not arise in this sort of situation.

7. In the result, I allow the appeal against the refusal of costs, and order that the Appellant had his taxed costs in this Court and in the Court below.