HKSAR v. DAVID CAMPBELL

HCMA261/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.261 OF 2004

(ON APPEAL FROM ESCC3123 OF 2003)

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J U D G M E N T

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1. The appellant was, on 6 February 2004, acquitted by Magistrate Mr J.H. Chan of one charge of assault occasioning actual bodily harm. On the same day, the appellant made an application for costs which application was refused. The appellant now appeals that order refusing costs.

2. The evidence before the magistrate was simple. On 4 June 2003, a dispute took place in a bar in Wanchai after the appellant had knocked a table. A drink was spilt and splashed onto a man at that table. As a result of an escalation in the incident, the appellant was charged with having struck the nose of the victim with his head causing an injury. There was a dispute as to the facts of the incident on the manner in which the assault was said to have taken place but there was no dispute that the police attended the scene and took no action upon an assurance by the parties that the matter would be settled.

3. The appellant and the father of the man who suffered the injury to his nose had a discussion outside the bar. The father did not give evidence. The appellant accompanied the injured man to hospital where his nose was treated. The wife of the appellant paid the costs of treatment at that time to the victim at the hospital.

4. Subsequently, on 14 June the appellant attended at a police station and complained that he was assaulted in the bar on 4 June and that the young man whose nose was injured was making unwarranted demands for reimbursement of medical expenses. He attended the police station again on 16 June 2003 and made a statement saying that he did not wish to proceed with further investigation of the complaint that he had made on 14 June because he had consulted a lawyer and believed that the lawyers for the parties could settle the matter.

5. By the end of June 2003, the appellant had paid several sums totalling $22,415 for medical expenses for the man who had been injured. It should be noted in this context that the appellant and the father of the man who was injured were colleagues in an airline in Hong Kong. On 4 July 2003, the man who was injured gave a written statement to the police concerning the incident and as a result of that statement the appellant was arrested and charged with the offence for which he was tried.

6. The magistrate disbelieved the evidence for the prosecution as well as all the evidence for the defence. The appellant gave evidence and called two witnesses who had been present at the scene. He found discrepancies between the evidence of the young man who was injured and his statement to the police which amounted to significant doubts as to his credibility. He did not believe the evidence of the appellant nor the reason that he gave for making payment for the medical treatment to the man who was injured was to prevent his wife being threatened and disturbed by that man and by his family. Correspondence indicated that the appellant had paid the medical expenses as full and final settlement.

7. In respect of the application for costs, this was the finding of the magistrate :

"... the appellant had acted suspiciously in this case. He had made a total payment of over $20,000 to PW1 for the latter's medical expenses. His explanation for the payments was most unconvincing. In my judgment, the payments did suggest that the appellant felt he was at fault to some extent. The prosecution also sought to rely on the payment as evidence of guilt. The appellant had brought suspicion on himself and made the prosecuting authorities believe their case against the appellant was stronger than it actually was. In my view there was evidence before me to enable me to exercise my discretion in refusing the appellant's costs."

8. The guidelines as to award of costs in favour of an acquitted defendant have been well established.. In R. v. Kwok Moon Yan & anor [1989] 2 HKLR 396, the court laid down the following principles :

(a) The exercise of the power to award costs is in the unfettered discretion of the Court, and falls to be exercised in the light of the circumstances of each case, but the normal practice is that an order should be made for the payment of costs out of public revenue unless there are positive reasons for making a different order.

(b) Positive reasons for not making such an order would exist, (1) where the appellant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is strong than it is or (2) where there is ample evidence to support a conviction that is quashed on a technicality which has no merit.

(c) The court must exercise separately its discretion in respect of the costs in the Court of Appeal, the court of trial in the magistrate's court having regard to the circumstances obtaining in each court.

9. In the same case, Silke VP (as he then was) had the following to say at page 401 :

"On the first: positive reasons for not making such an order would be ... we do not view this as meaning that there must be both a bringing of suspicion and a misleading before a successful appellant will be deprived of his costs...."

10. Here, the sole issue is whether as a matter of fact the appellant brought suspicion upon himself. The finding by the magistrate that he did so is two-fold. Firstly, that he paid medical expenses to the man who was injured and, secondly, those medical expenses were in the sum of approximately $20,000. These two factors alone led to the magistrate's findings that the appellant had brought suspicion upon himself.

11. The magistrate also added that the prosecution relied upon those payments to establish the guilt of the appellant. However that fact does not add anything to his finding as it is part of the appellant bringing suspicion upon himself. The magistrate made no finding that the case against the appellant appeared by that evidence to be stronger than it was. Where a magistrate has made a decision as to matters of fact then it will be rare for an appellate court to interfere with those matters of fact. However, in this instance, there is no issue taken that the magistrate's findings of fact are accurate, to the extent that the payments were made and that they were made in respect of medical expenses.

12. The issue before me is whether the magistrate was correct in coming to his conclusion that by doing so the appellant brought suspicion upon himself. The first point to note is that the whole of the evidence of the prosecution came from one witness and that was the young man who was injured in the incident. If the prosecution were to obtain a conviction then it would be upon a finding by the magistrate that there was an assault and that it caused actual bodily harm. It was from this witness that came the evidence that he had received payment from the appellant for his medical expenses.

13. If the magistrate believed from the witness that the assault had taken place as he described and that it had resulted in actual bodily harm, then the evidence as to the payment of his medical expenses would not have added to the evidence leading to his conviction. If as was the case he was disbelieved in his evidence as to how the incident took place, then acceptance of the evidence of payment of the medical expenses would not have been sufficient to have led to a conviction. Since the evidence of the payment had little value to the prosecution, then the payment itself must have added little to the suspicion in the minds of the prosecution.

14. The second matter that I must consider is that at the time the appellant withdrew his complaint from the police on 16 June 2003, he referred to the matter as being in the hands of his solicitors and that the solicitors for each side would resolve the matter. He went on to give a reason for the payment that he did not wish his wife and family to be threatened which was disbelieved by the magistrate. But the magistrate made no finding as to whether he believed that the payments were made upon the appellant having received advice from solicitors there being some indication that solicitors were involved in the settlement of the matter. It is difficult to see that the appellant would have been bringing his suspicion upon himself by making the payment if solicitors, presumably for reasons of civil liability, advised that payment be made. In all the circumstances, I am not satisfied that the magistrate was right in holding that the appellant brought suspicion upon himself either by the payment or the amount of the payment, particularly where there was some evidence which could or might have been true which the magistrate did not address that it may have been done upon legal advice.

15. The appeal is allowed and the appellant will have his costs in the court here and in the court below, to be taxed if not agreed.