HKSAR v. WONG KWOK WING

DCCC 1154/2018

[2019] HKDC 957

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1154 OF 2018

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RULING ON COSTS

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1.  The defendant pleaded not guilty to one charge of dangerous driving causing death. He was acquitted of the charge but convicted of the statutory lesser offence of careless driving after trial. He applied for costs. This is my ruling.

Background

2.  The defendant was the driver of a medium goods vehicle and had stopped behind some vehicles in front of a red traffic light.

3.  He drove forward when the cars in front of his started to move upon the lights turning green.

4.  Almost as soon as his vehicle had started moving forward, the defendant felt that it had run over something and so he immediately applied the brake and stopped the truck.

5.  As it turned out, the defendant’s vehicle had run over a bicycle and the cyclist, Mr Ho Ming.  Mr Ho suffered multiple blunt force injuries as a result and did not survive the incident.

6.  At trial, I found that the defendant’s failure to ascertain the whereabout of the bicycle that he had seen moments earlier in his left door mirror before he moved forward his lorry should not be regarded as driving manner falling far below that expected of a competent driver.

7.  Having found that the defendant’s driving was not dangerous, I proceeded to consider whether the defendant’s driving was careless and made the following findings, as set out in paragraphs 149 to 159 of the Reasons for Verdict:-

“149. I find that the driver of such a large lorry as the defendant’s, having seen a cyclist moving in the narrow gap between his lorry and the kerb just before moving off, should be more careful when starting off to see where the cyclist had gotten to.

150. It is not the case that the defendant had never known about the existence of the bicycle, he did, he just failed to continue to pay attention to its presence before moving off.

151. Having seen the cyclist, the defendant just assumed he had continued to travel on without incident.

152. Given the slightly uphill gradient, the busy road condition, the size of the defendant's lorry, the narrowness of the gap that the bicycle was moving through when the defendant saw it, this was a careless assumption to make.

153. According to the evidence of the expert witness, at least part of the bicycle would always be visible to the driver of the lorry through the mirrors on the left side of the lorry, whether it be behind or immediately in front of the lorry.

154. If the defendant had taken the time to check his left mirrors again, he would have seen where the bicycle was and adjusted his action accordingly.

155. If he did not see the bicycle in any of the mirrors, given that he had seen the bicycle just moments before, the defendant would then be alerted to the possibility of the bicycle being in front of the lorry. He then ought to have checked the front of his lorry more carefully to make sure that the bicycle was not in the path of the lorry should he start to move it forward.

156. If the bicycle was moving too closely to the lorry, or was wobbling, a prudent driver would have remained stationary to avoid any possible collision with the bicycle, and allowed time for the cyclist to recover and to move to a safer place.

157. The prudent driver would also sound his horn to alert the cyclist of his presence and hopefully for the cyclist to draw attention to his own presence and announce his whereabouts.

158. Under the circumstances, I find that the defendant’s driving was without due care and attention in that he had failed to check again to ascertain the exact whereabout of the bicycle before moving his lorry forward, having seen the bicycle moving in the narrow gap on the left of the lorry just moments before.

159. By this failure, the defendant had deprived himself of the opportunity to see the bicycle and to avoid running over the bicycle and the cyclist.”

8.  I, therefore, found the defendant guilty of careless driving, and he was fined $3,500 and ordered to attend and complete a driving improvement course.

9.  Having been acquitted of the dangerous driving causing death charge but found guilty of the statutory lesser offence of careless driving, the defendant proceeded to apply for costs of the trial on the basis that the defendant had been acquitted of the dangerous driving charge, and that he had previously indicated to the Department of Justice in a letter dated 7 January 2019 that he was prepared to plead guilty to careless driving.

10.  The offer to plead to the lesser offence was rejected by the Department of Justice.

11.  On the first day of trial on 24 April 2019, having recorded the defendant’s plea of not guilty against the dangerous driving charge, the court inquired as to whether the defendant was prepared to plead guilty to the lesser offence of careless driving.

12.  Mr Khosa informed the court that the defendant was not so prepared and that the defendant’s position was that his driving was neither dangerous nor careless.  This stance was maintained right to the end of the trial and reconfirmed in the defendant’s evidence and Mr Khosa’s closing submissions.

13.  At the time of the taking of the defendant’s plea, I was, rightly, not informed of the defendant’s earlier offer to the Department of Justice.  It was not until the defendant was making his application for costs that the court was so informed.

14.  At my suggestion, parties agreed that the matter of costs can be dealt with by way of written submissions and the ruling to be handed down.

Considerations

15.  It is not in dispute that in a case where a defendant has been acquitted, the defendant would normally be entitled to costs unless it can be said and shown that the defendant had brought suspicion upon himself, or that the acquittal was based on a technicality.

16.  The difficulty in dealing with the defendant’s present application is that although he has been acquitted of the dangerous driving charge, he was found guilty in the same proceedings of the statutory lesser offence of careless driving.

17.  Mr Khosa in his written submissions did not specify under which section of the Costs in Criminal Cases Ordinance, Cap 492 (“CCCO”) that the defendant is applying for costs.

18.  He dealt with the application by isolating the dangerous driving acquittal and applying the above-mentioned principle on costs first, and then proceeded to argue that because of the defendant’s previous offer to plead to careless driving, the fact that he was subsequently convicted of careless driving should have no bearing on his entitlement to costs on the acquittal.

19.  Under section 5 of the CCCO, the District Court judge has a discretion to award costs to the defendant “where after trial…a defendant is acquitted…”.

20.  I find that this cannot be the section that the defendant is relying on since he has been convicted and not acquitted after trial, albeit of a statutory lesser offence.

21.  Under section 6 of the same Ordinance, “where a defendant who is charged with the commission of more than one offence is acquitted of one or more than one but not all of any such offences, the court may in relation to all or any of such acquittals order that costs be awarded to the defendant.”

22.  In the present case, the defendant was not charged with the commission “of more than one offence”.  He was charged with one offence, which has a statutory lesser offence.  It would appear that section 6 would not be applicable as well.

23.  However, it can be argued that the defendant was charged with one offence and its statutory lesser offence, thus he did face, in effect, more than one offence.  It is, therefore, arguable that this is the section that the defendant is relying on for costs of the acquittal of the dangerous driving charge.

24.  In the case of HKSAR v Ng Chi-hung, CACC 223/2009, the applicant’s conviction for causing death by dangerous driving was quashed and substituted with a conviction for careless driving on appeal, and the applicant applied for costs of the trial and the appeal.

25.  The application for costs of the trial was dealt with in the last paragraph of the judgment:-

“31. 在開審前，申請人已表示願意承認不小心駕駛罪，但申請人的立場，控方拒絕接納。在這情況下，本庭行駛酌情權，命令控方亦須支付申請人原審的訟費。”

“31. Before the commencement of trial, the applicant had already indicated that he was willing to plead guilty to careless driving, but the applicant’s position was not accepted by the prosecution. Under this situation, this court exercises its discretion, order that the prosecution do pay the defendant’s costs of the trial.” (my translation)

26.  It is not clear from the judgment as to when the indication to plead was made, nor under which section of the CCCO that the costs order was being made by the Court of Appeal.

27.  Based on this one paragraph, it would appear that it was on the sole basis of the applicant’s offer to plead guilty to careless driving that the Court had exercised its discretion and ordered the trial’s costs be to the applicant.

28.  In the case of HKSAR v Lai Hon-pun (賴漢斌), CACC 372/2012, a similar situation arose.

29.  There the appellant was convicted of dangerous driving causing grievous bodily harm at trial.  This conviction was quashed on appeal and substituted with a conviction for careless driving.  The appellant applied for costs of the trial and the appeal.

30.  The Court referred to sections 5 and 9 of the CCCO as the legal basis of their power to award costs to the appellant on appeal.  There was no mention nor discussion of the application of section 6.

31.  The Court of Appeal was referred to the above-mentioned case of Ng Chi-hung, but appeared to have distinguished it on the basis that the appellant in Lai Hon-pun, despite having indicated that he was willing to plead guilty to careless driving before the calling of prosecution witnesses, which was not accepted by the prosecution, proceeded to defend his case on the basis that his driving manner did not even amount to careless driving.

32.  The Court then proceeded to deal with the appellant’s submission that quashing of the dangerous driving conviction on appeal was equivalent to the appellant having been acquitted at the original trial and was thus entitled to costs.

33.  The Court rejected this submission:-

“12. 上訴人原被控「危險駕駛」罪，上訴得直後改判「不小心駕駛」罪。本庭不認同上訴一方指此上訴結果等同上訴人在原審時被判罪名不成立一般。事實上，若原審法官沒有足夠理據裁定上訴人「危險駕駛」罪罪名成立，他理應判處上訴人「不小心駕駛」罪罪名成立，而非完全任何罪名均不成立。”

“12. The appellant was originally charged with dangerous driving, his appeal succeeded and a conviction for careless driving was substituted. This Court do not agree with the appellant’s submission that the result of the appeal is equivalent to the appellant having been acquitted at trial. In fact, if the trial judge did not have sufficient ground to convict the appellant of careless driving, he would have found the appellant guilty of careless driving, and not acquitted him of all offences.” (my translation)

34.  I find that the proper interpretation of this paragraph is that, the Court of Appeal found that had the trial judge convicted the appellant of careless driving after finding him not guilty of dangerous driving, the issue of costs for the appellant would not have arisen at all because there would not have been an acquittal and the appellant would not have been entitled to costs under section 5 of the CCCO.

35.  In other words, there was no ground for the appellant to apply for costs because he had been convicted of the statutory lesser offence despite having been acquitted of the offence of dangerous driving. There was no acquittal after trial under section 5.

36.  Having made that finding, the Court of Appeal nevertheless proceeded to consider the strength of evidence in the case based on the principle on costs in criminal cases[1] as expounded in the case of Tong Cun Lin v HKSAR[2], and found that the evidence against the appellant was strong, and exercised their discretion to refuse the appellant the costs of the trial.

37.  As mentioned above, the Court of Appeal did not consider the application of section 6 of the CCCO.

38.  Based on my reading of section 5 of the CCCO and my understanding of the Court of Appeal’s decision in Lai Hon Bun, I find that the defendant should not be entitled to costs of the trial under section 5 since he has not been acquitted after trial.

39.  I further find that even if the defendant is able to rely on section 6 of the CCCO to apply for costs of the acquitted dangerous driving offence, the defendant should not be so awarded.

40.  Given the factual basis relied on by the defendant in defence, there is no significant difference between his defending against the dangerous driving charge and the statutory lesser offence of careless driving and no extra costs would have been incurred.

41.  To award him costs for defending the dangerous driving charge, thus in effect covering also his defence of the careless driving offence for which he was convicted would not be just and reasonable in the circumstances, this being one of the general principles set out in section 15(c)[3] of the CCCO that the court “shall” consider when making an order as to costs.

42.  I also find that the fact that the defendant had prior to commencement of trial written to the Department of Justice indicating that he was willing to plead guilty to careless driving cannot assist the defendant on the issue of costs once the defendant had indicated through his counsel at trial that he is not prepared to plead guilty to careless driving and had conducted his defence on the basis that his driving was neither dangerous nor careless.

43.  If the appellant was not entitled to costs in Lai Hon Bun despite having indicated he was willing to plead guilty before the calling of prosecution witnesses, then it must also be open for me to exercise my discretion to find that the defendant in our case is not entitled to costs despite having previously indicated that he was willing to plead guilty to careless driving but had since changed his position.

44.  In the circumstances and based on the above reasons, I find that it is just and reasonable for me to exercise my discretion against the defendant and refuse his application for costs of the trial.