HKSAR v. THAPA KAMALA

HCMA 366/2020

[2022] HKCA 1697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 366 OF 2020

(ON APPEAL FROM ESS NO 39884 OF 2016)

________________________

________________________

_____________________

J U D G M E N T

_____________________

The Court:

1.  After a prolonged trial before Deputy Special Magistrate Ho Lai-ming (“the Deputy Magistrate”), which was set down for 2 days but lasted for 91 days, the appellant was acquitted of the offence of negligently endangering her own safety as a pedestrian[1]. The appellant’s costs application was however refused by the Deputy Magistrate.

2.  By a judgment handed down on 21 September 2022 (“the Judgment”)[2], this Court allowed the appellant’s appeal against the Deputy Magistrate’s refusal. However, upon exercising the discretion on costs afresh, the Court again refused costs, holding that by crossing the road at night behind the rear of a stationary vehicle (designated in the trial as “Taxi 2”), when she could have used a nearby pedestrian facility, the appellant had brought suspicion upon herself for the offence charged.

3.  By a summons dated 3 October 2022, which we treat as a notice of motion, the appellant applied to have certified three questions of law, said to have been involved in the Judgment and be of great and general importance, for the purpose of further appeal to the Court of Final Appeal[3]. The questions of law sought to be certified are:-

“In considering whether an acquitted defendant should be deprived of his costs, whether a defendant should be held to have brought himself suspicion for doing an act which was not relevant to the offence being charged or not contained in the facts and matters alleged by the Prosecution (Question 1);

In considering whether an acquitted defendant should be deprived of his costs, apart from whether that defendant had brought himself suspicion, whether the Court should also take into account the conduct of the Prosecution (Question 2);

In considering whether an acquitted defendant should be deprived of his costs by the Court of Appellant [sic] jurisdiction, apart from whether that defendant had brought himself suspicion, whether the Court should also take into account the conduct of the trial Magistrate (Question 3).”

4.  We consider it appropriate to determine the matter on the papers without an oral hearing.

5.  The application to certify questions of law was made out of time. The appellant’s explanation for the delay was that her counsel had been overseas and only returned to Hong Kong 5 days after the Judgment was handed down. We do not find the explanation convincing. Nevertheless, we would proceed to consider the merits of the application.

6.  On Question 1, the appellant submitted that, the prosecution case was that she had failed to exercise due care and attention to an approaching taxi travelling on the northbound lane (“Taxi 1”), when she crossed the road from the southbound lane. It did not refer to any failure to use a pedestrian facility. Further, a pedestrian was entitled to cross the road anywhere he liked provided he took reasonable care of his own safety. The appellant’s failure to use a nearby pedestrian facility; and her crossing the road behind Taxi 2, were matters not relevant to the offence. Our judgment has extended the law on costs by taking into consideration such matters.

7.  As pointed out at [84] of the Judgment, the principles on criminal costs are well-established. The general rule is that costs follow the event of an acquittal. This general rule may, however, be departed from where there is a positive reason to do so, such as where the defendant’s own conduct has brought suspicion on himself. It is also well-settled that, in determining whether a defendant has brought suspicion on himself, consideration may be taken of his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him. See Ting James Henry v HKSAR (No.2) (2007) 10 HKCFAR 730 at [16].

8.  The fact that the appellant’s crossing the road at night behind the rear of Taxi 2, and her failure to use a nearby pedestrian facility, clearly formed part of the setting for the charge against her; and, contrary to her submission, were clearly relevant. The court is entitled to take them into account on costs. Consequently, Question 1 does not raise any arguable point of law of great and general importance. It is plainly not arguable.

9.  For the remaining two questions, the appellant submitted that, in determining whether to deprive the appellant costs, the Court should take into account the conduct of the prosecution (Question 2) and of the Deputy Magistrate (Question 3). She argued that the proceedings against the appellant were commenced and continued without proper regard to the public interest, and the prosecution was the primary author of the prolonged trial. She also argued that the Deputy Magistrate had failed to control the proceedings and bring the case to a just conclusion expeditiously.

10.  The disturbing course of the proceedings below was set out in detail in the Judgment. For the reasons that we gave, we found that the Deputy Magistrate, the defence and, to a lesser extent, the prosecution were all responsible for wastage of judicial time and resources (see in particular [71] to [75]; and [86]). Having contributed significantly to the wastage, reliance on the faults of the prosecution and the Deputy Magistrate would not assist the appellant on costs. In any event, there was no ruling in the Judgment that the conduct of the prosecution and the Deputy Magistrate should not be taken into account. Both Questions 2 and 3 do not arise and do not in any event raise any arguable point of law of great and general importance. They are plainly unarguable, too.

11.  The application for certification is accordingly refused with costs to the respondent, to be taxed if not agreed.