MASS TRANSIT RAILWAY CORPORATION LTD v. DR NKASU MICHAEL MMAAMA

HCMA 488/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 488 OF 2003

(ON APPEAL FROM KTS 154/2003)

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J U D G M E N T

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1. This is an appeal by the Appellant against his sentence and an order for costs. He has abandoned his appeal against conviction.

2. On 5 May 2003, the Appellant was convicted after trial by Miss Debbie Ng sitting at Kwun Tong Magistracy Court of the offence of having failed to produce for checking, inspection or verification at a time when he was within the paid area, the Concessionary Ticket which he had inserted into the automatic gate contrary to By-laws 17(2) and 43 under Schedule of the Mass Transit By-laws made under the Mass Transit Railways Ordinance Cap. 556. He was ordered to pay a fine of $3,000.00 and costs of $4,500.00 to the MTR.

3. The maximum penalty for the offence which the Appellant was convicted is a fine of $5,000.00.

4. In her reasons for sentence, the learned Magistrate referred to this maximum penalty and continued:

"According to s. 17(3) of the MTR By-laws, any person who contravenes s. 17(2) i.e. the present offence shall be regarded as not having paid his fare and shall be liable to pay a surcharge, and such surcharge amounts to HK$500. I have heard a number of MTR cases before this one, in which the passengers paid the surcharge to MTR, and those cases were not brought to court. If a passenger refuses to pay the $500 surcharge and then he is prosecuted, I usually order a fine of HK$800 to $1,000 when the passenger pleads guilty. If a passenger pleads not guilty but he is convicted after trial, there would be no discount in sentence, and I usually order a fine of HK$1,500 to HK$2,000. I usually complete same type of MTR trial in less than or at most one day even the trial is conducted in English. Having heard the evidence for 2.5 days, it revealed it was a case of dishonesty. Having learned that the Appellant had ample of titles, the Appellant was well-educated and had a clear record, furthermore, there was no mitigation from the Appellant, I considered a fine of HK$3,000 appropriate."

5. Unfortunately by reasons of the way the Magistrate expressed herself, a person reading her reasons for sentence may be left in some uncertainty as to the factors she took into account in concluding that this case warranted a fine of $3,000.00 rather than the fine of $1,500.00 to $2,000.00 that she should would usually impose after trial.

6. While the fact that the evidence revealed that this case was a case of dishonesty by the Appellant is a factor that could have warranted a fine of $3,000.00, her reference to the trial lasting 2 1/2 days rather than, as she said was usually the case, "at most one day" would not have warranted an increased sentence.

7. Even though there may be a certain lack of clarity in the Magistrate's reasons, this court must look whether in the circumstances found by the Magistrate the sentence of $3,000.00 imposed by her was manifestly excessive or wrong in principle.

8. I do not consider that it was.

9. The Appellant had been asked to produce the yellow Concessionary Ticket he had used by two officials of the MTR on several occasions. Not only had he refused to do so, but he had tried to conceal the ticket between the wallet and a letter he was holding, and he falsely claimed that he had inserted his Octopus card into the gate. His conduct had necessitated the calling of the Police Officer.

10. The sentence of a fine of $3,000.00 is fully justified in the circumstances of the offence. The Appellant had failed to respond to invitations to reveal his means, and so there was nothing to suggest any inability to pay such a fine.

11. Insofar as the order for costs of $4,500.00 is concerned the Appellant alleges:

(1) that the costs of $4,500.00 awarded to the prosecutor were in all the circumstances unwarranted and alternatively;

(2) that the amount of the order for costs was excessive when compared with the fine imposed.

12. Assuming for the moment that an award of costs was warranted, I do not consider that the award of a sum of $4,500 was excessive. It was clearly only a fraction of the costs incurred by the MTR. Their solicitor's time would be charged to the MTR at $2,600.00 per hour. Quite apart from the preparation work for the trial, the trial itself had already exceeded 15 hours.

13. Although the courts have said that in general it is wrong in principle to award a very heavy order for costs after the imposition of a small fine and have said that the fine and the order for costs should within reasonable limits go together in step, this is not a case where there was a small fine nor a case whether was a very heavy order for costs.

14. The actual costs as I have said were many times the amount of the court's order for $4,500.00. There is no principle that the costs should not exceed the fine imposed. I am satisfied that the order that the Appellant should pay $4,500.00 did not infringe the principle in s. 15(1) of the Costs in Criminal Causes Ordinance, Cap. 492 that an order for costs should not be punitive but simply be reasonably sufficient to compensate a party to the proceedings for expenses properly incurred.

15. The remaining question I have to decide is whether it was appropriate for the Magistrate to make an order for costs at all in the circumstances.

16. The Magistrate was mindful of the principles enunciated in HKSAR v. Chan Kwok Wah [1999] 1 HKC 697 (which Mr Yeung for the Respondent does not challenge) that in general a Defendant who pleaded not guilty should not be penalised in costs unless there were "special circumstances which caused the prosecutor to incur extra expenses including the behaviour of the Defendant throughout the trial like being deliberately difficult to the prosecution witness, intentionally delaying the case or insisting on the prosecution proving unimportant or undeniable facts".

17. The Magistrate said that she did consider that "the trial was lengthened by the Appellant's attempts to dispute everything which are mostly irrelevant and tenuous throughout the trial".

18. It is apparent from the Magistrate's extremely detailed recital of the evidence and cross-examination that the Appellant was mounting a vigorous challenge to the prosecution case. Most at least of the matters raised by him were matters upon which he was entitled to challenge the prosecution if he was putting it to strict proof.

19. It is apparent that there were some matters that would perhaps have been regarded as unnecessary or irrelevant in the context of the Appellant's defence, if they had been raised by a trained lawyer, such as his identification by PW1 and the matter of the Privacy Ordinance. But there is nothing to suggest that an excessive amount of time was spent on these issues.

20. It has to be borne in mind that the Appellant was unrepresented. As Chan J said in HKSAR v. Chan Kwok Wah although an unrepresented and verbose Defendant might cause the prosecution or the court to think it was being deliberately difficult the court should not further penalise him for his behaviour, particularly when he was exercising the fundamental constitutional right granted to him.

21. I consider that the Appellant's conduct may well have fallen into this category and that in the circumstances, the Appellant should not have been further penalised by the order for costs.

22. I dismiss the Appellant's appeal against the fine of $3,000.00. I allow the Appellant's appeal against the order for costs. I order that the Magistrate's order for costs be set aside.