HKSAR v. SOHN, PATRICK TAE JIN

HCMA550/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 550 OF 2009

(ON APPEAL FROM STCC NO. 1167 OF 2009)

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J U D G M E N T

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1.  This is an appeal against a refusal by the magistrate to make an award of costs to the Appellant upon his acquittal of a charge of an assault occasioning actual bodily harm.

2.  The complainant in the case lived above the Appellant.  The Appellant was a gentleman who gave cello lessons.  That created some disturbance to the man above.  On the day in question, PW1, the man above, went down to remonstrate.  There were issues about exactly how he did it, but there came a moment when a see-through outer iron gate was between the two men.  The Appellant opened the iron gate, and it struck PW1, catching him on the forehead, causing a laceration.

3.  The acquittal was on the basis that the magistrate could not rule out accident, and in particular, it was on the basis that the description given by PW1, which tended to suggest it was not an accident, was not to be relied upon because she thought he was a man who had exaggerated.

4.  A relevant piece of history perhaps worthy of note is that a sergeant came along, made his investigations, and he thought there had been an accident and no crime.  The prosecution arose because PW1 complained to CAPO about the sergeant’s decision, and that resulted in the proceedings taking place.

5.  Whilst the sergeant was there, PW1 had asked for an apology from the Appellant.  The Appellant refused to give it.

6.  When it came to giving reasons for the refusal for costs, the magistrate, in effect, pointed to two things:  the conduct of the Appellant in opening the iron door, and the fact that he failed to apologise.

7.  The case of Ting, James Henry v HKSAR No. 2 made clear that in considering costs following an acquittal, the court could look at conduct that “formed part of the setting for the charges laid against him”.  Here it can be argued that the act of opening the iron grille was a grossly negligent one.  It cannot be said to be reckless, because recklessness was sufficient mens rea for the crime, and the magistrate specifically found that had not been established.  To say it was reckless would go behind the acquittal.

8.  It has been argued before me today by counsel for the Appellant that that conduct, characterised as gross negligence, cannot be taken into consideration because it was not an ingredient of the offence such as the dishonesty was in Ting’s case.  I am against him on that.  There is nothing in Ting’s case or in the law or in common sense that limits the conduct that is said to justify the refusal of costs to being one of the ingredients of the offence.

9.  When it comes to looking at the failure to apologise, there is a problem.  I can see how most people, if there had truly been an accident, would be minded to apologise, and that the failure to do so therefore colours the conduct that led to the situation.  However, the fact was that the Appellant was a man under suspicion after the injury had been caused, and whether or not he had been cautioned, he had the right against self-incrimination.  He has to be taken as knowing of that right.  To have that right and then penalise him for not saying something such as “I’m sorry” cannot therefore be used against his interest.

10.  It is thus that I am left with looking at the conduct that formed part of the setting for the charge, and weighing that in seeking a just conclusion concerning the application for costs.

11.  In the course of the appeal, the test that I have to apply has been the subject of some debate.  There are cases at First Instance, and the case of HKSAR v Munsaf Khan HCMA 143 of 2006, where it has been held that:

“In effect, the Appellate Court is reviewing the exercise of a discretion by the magistrate and cannot substitute its own view, and has to honour the exercise of the discretion unless it can be demonstrated that irrelevant matters were taken into consideration or that no reasonable tribunal could have reached the same conclusion.”

12.  There are two ways in which an appeal against a refusal of costs can come to this court.  One is in the usual way of appeals under the Magistrates Ordinance.  If it comes here in that way, then the appeal is a rehearing and is not a review of the magistrate’s discretion; it is the fresh exercise of a discretion by the appeal judge.  The other route to come to this court is under the Costs in Criminal Cases Ordinance.  There is a right of appeal in respect of cases where there has been an award of costs.

13.  On the face of it, those words, set out in section 19, would not apply to the situation here, because there was no award of costs.  However, I am aware that there is authority that says no order is in itself an order; it is an award of nil.  I do not have to resolve that, because I will decide this case on the basis that whatever the law is about that construction of the Costs in Criminal Cases Ordinance, the Appellant is entitled to be here under the Magistrates Ordinance, and that this is therefore a fresh exercise of my discretion.  I do not have to say that no reasonable tribunal could have come to the conclusion the magistrate did, and I would have been shy of doing that, because the magistrate had the advantage of having seen and heard the parties and heard the trial.

14.  But I have to do my best on the material before me and exercise my discretion afresh.  It is worthy of mention what is at stake.  The costs of the trial in the Magistracy were $62,000.  The costs of this appeal are some $40,000.  The Magistrates’ case spanned three days and had an experienced junior counsel conducting the proceedings on behalf of the Appellant, but it was not three days of hearing time; they got on late on the first day and had to come back for the delivery of the verdict after an adjournment.  So in effect, it was a one-day case, though counsel had to attend on three occasions.  Those costs, in the circumstances, I deem to be reasonable ones.

15.  It is thus I conclude that I am entitled to look at the conduct of the Appellant.  I am entitled to find that it involved gross negligence short of recklessness in opening the iron grille in the way he did, and I am, I believe, entitled to come to the conclusion that it should result in a diminution of the award of costs against him.

16.  I can see in some ways the history I have related concerning the CAPO complaint and the like have some force in the matter.  I have not found the case an easy one to decide.

17.  My decision is that the right order for costs in the Magistrates’ Court is that the Appellant have half.

18.  That leaves me then to consider what the order for costs should be here today on appeal, and in effect, the Appellant started off with nothing after the proceedings.  He has come here and come away with something, and something significant.  He has been successful here, and looking at the justice of it all, and considering the figures and the like and the overall situation, I shall award the Appellant his costs in full today of this appeal.

19.  The appeal is allowed to the extent I have just indicated, and I make it clear that there is no need for a taxation.  When I say he has half of the costs below, that is half of the 62,000, and when he has his full costs for today, that is the 40,000.