HKSAR v. BALASINGHE PEDIGE SRIYANTHI

HCMA 413/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 413 OF 2004

(ON APPEAL FROM TMS 7003/2003)

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J U D G M E N T

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1. This is an appeal by an acquitted defendant against a Magistrate's refusal to award her costs. On the afternoon of 11 June 2003 this Appellant was walking across the road along a traffic light controlled pedestrian crossing when she was struck by the nearside wing mirror of a taxi which was being driven through that crossing. Acting on the view that the traffic lights were against pedestrians and in favour of motorists at the time, the police laid an information against the Appellant alleging that she, as a pedestrian using a road, had negligently endangered her own safety, contrary to section 48 of the Road Traffic Ordinance, Cap. 374. Put in common language, the Appellant was charged with jaywalking.

2. On 6 April 2004, the Appellant appeared before Daniel Ho, Esq. in the Magistrate's Court at Tuen Mun to face this charge, to which she pleaded not guilty and on which she was acquitted after trial. In acquitting her, the Magistrate said this:

" Can I be satisfied beyond all reasonable doubt that, accordingly to the prosecution's evidence, that the defendant crossed the road under a red pedestrian traffic light, thereby endangering her own safety? I must say, given the evidence before me, I have a little doubt in my mind. Despite it is just a little doubt, the benefit of it must be given to the defendant and she is acquitted of the charge."

3. As to why he did not award the Appellant's costs despite her acquittal, the Magistrate said this:

" According to Section 3 of Costs in Criminal Case, Cap. 492, under which the Defence applied for costs, I may order that costs be awarded to the appellant when I acquit her.

According to R versus Kwok Moon-yan and Lok Man-chiu (Criminal Appeal Nos. 347 and 500 of 1988) which the Defence referred to when making such an application, such an order should be made unless there are positive reasons for making a different order.

In the present case I had already concluded that I do not believe the appellant's admission made to PW2 that the pedestrian traffic light was green when she started to cross the road. I had also concluded that if the Prosecution had provided me with evidence of the traffic light sequence timing, I could have reached a totally different decision.

I am satisfied that given two different stores, the prosecution could choose which party to believe and I don't see anything wrong in the prosecution choosing to believe the taxi driver. I am also satisfied that the appellant's own conduct has brought suspicion on herself and accordingly I refused the appellant's application for costs. I am satisfied that I was right to do so.

4. That the prosecution is not to be criticised is not a reason for depriving an acquitted defendant of her costs. That an acquitted defendant brought suspicion upon herself is a reason for doing that. But is there a sound basis for saying that this Appellant had brought suspicion upon herself? There is nothing in the broad circumstances of the case to provide a sound basis for saying that she had brought suspicion upon herself. She walked across the road along a traffic light controlled pedestrian crossing, and was struck by a vehicle driven through that crossing. It has not been proved that the lights were against her rather than in her favour. As for her conduct during the investigation, she certainly did nothing to bring suspicion upon herself. She told the police that the lights had been in her favour.

5. The Respondent says that it was only when the prosecution witnesses were cross-examined that it was revealed that the defence case was that the Appellant started to cross the road when the lights were in her favour, but that she walked so slowly that the lights turned against her while she was still crossing the road. And, the Respondent says, the prosecution might not have been led into thinking that the case against the Appellant was stronger than it was if she had mentioned to the police how slowly she had been walking. I do not find this a convincing argument. It was for the police to investigate the case, and for the prosecution to prove its case. What the Respondent calls "the defence case" was dealt with by the Magistrate like this:

"The defence also suggested that it might take more time for the defendant to finish crossing the first and second lanes and by the time she reached the third lane, the pedestrian traffic light had turned red."

This was merely an argument by counsel. A person under investigation cannot be said to have brought suspicion upon herself just because she did not, when questioned by the police, raise an argument later on used by her advocate with a view to casting a reasonable doubt on the prosecution's case.

6. In my view, there is no sound basis for saying that she had brought suspicion upon herself.

7. Accordingly, I allow this appeal to award the Appellant her costs in Magistrate's Court to be taxed, and I also award the Appellant her costs in this Court to be taxed.