HKSAR v. BULLEN CHRISTIAN ANTHONY

HCMA 50/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 50 OF 2017

(ON APPEAL FROM ESS NOS 10982 AND 26227–28 OF 2016)

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J U D G M E N T

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Background

1.  The Appellant was summonsed for three offences, namely, being the owner of a local vessel which was not licensed, on 6 October 2015 and 19 January 2016 [1] [ESS 10982/2016 and 26227/2016 respectively]; and being the owner of a local vessel, without reasonable excuse, failed to paint or permanently affix to or mount on the deck housing or the hull, the marking of certificate of ownership number of the vessel, on 19 January 2016 [2] [ESS 26228/2016].

2.  The Appellant pleaded not guilty to the summonses, and the case was heard before Deputy Magistrate Yu Chun Pong.  The Magistrate ruled that the first two summonses were time-barred.  On the other hand, the Magistrate ruled that there was no case to answer in relation to the remaining summons (ESS 26228/2016) as the Magistrate was of the view that the Prosecution failed to produce the printout of the vessel’s certificate of ownership [Exhibit P3] in accordance with section 22A of the Evidence Ordinance.

3.  The Appellant applied for costs and was refused by the Magistrate on the ground that the Appellant was acquitted on technicalities.

Chronology of events

4.  The chronology of events prepared by the Respondent is listed as follows:

18 November 2014	The operating licence of the Appellant’s vessel expired.
16 January 2015	The Marine Department issued a computer generated letter to the Appellant reminding him that he had to apply for a renewal of operating licence for the vessel.
26 June 2015	The Appellant’s vessel was found on the beach in Lamma Island.  (“1st Incident”) After seeking legal advice, no prosecution was instituted against the Appellant.
6 October 2015	It was found that the Appellant’s vessel was anchored in waters off Lo Tik Wan, Lamma Island.  (“2nd Incident”)
19 January 2016	It was found that the Appellant’s vessel was anchored in waters off Lo Tik Wan.  The displays of the Certificate of Ownership number of the vessel were not made in accordance with the statutory requirements.  (“3rd Incident”)
5 April 2016	The information of ‘failing to license a certificatedlocal vessel’ in respect of the 2ndIncident was laid. The summons (ESS 10982/2016) was issued against the Appellant on the following day.
27 April 2016	The Appellant renewed the operating licence for one year.
15 July 2016	The information of ‘failing to license a certificated local vessel’ and ‘failing to mark the Certificate of Ownership number on the vessel’ in respect of the 3rd Incident was laid.  The corresponding summonses (ESS 26227/2016 and ESS 26228/2016) were issued against the Appellant on the following day.
21 July 2016	The case was heard before Deputy Special Magistrate Andrew Hung and it was adjourned.
28 July 2016	The case was heard before Deputy Special Magistrate Andrew Hung and it was adjourned.
25 November 2016	The case was heard before Magistrate Debbie Ng and Principal Magistrate Earnest Lin and it was adjourned for argument.
5 December 2016	The case was heard before Deputy Magistrate Yu Chun Pong.  The issue of discovery was resolved.  The case was adjourned for the prosecution to seek legal advice on the issue of time-bar and whether the prosecution would be proceeded with or not.
3 January 2017	The Prosecution informed the court that the prosecution would be continued.  Deputy Magistrate Yu Chun Pong directed that the issue of time-bar to be decided in the trial.  The plea court then fixed the trial to be heard on 9 February 2017 with two days reserved.
7 February 2017	The Appellant appealed against the Magistrate’s order that the issue of time bar to be determined at trial.  The appeal (HCMA 50/2017) was dismissed, because there was still a live issue as to whether the charges were time-barred.
17 February 2017	The Magistrate dismissed ESS 10982/2016 and ESS 26227/2016 for the reason of being time-barred for prosecution.
11 March 2017	The summons ESS 26228/2016 proceeded to trial.  PW1 testified that the subject vessel was discovered as not having its certificate of ownership clearly displayed on the right side of the hull.  The prosecution sought an adjournment to prepare a computer certificate in order to produce the printout of the vessel’s certificate of ownership (Exhibit P3).
14 March 2017	The trial of summons ESS 26228/2016 resumed, but the computer certificate produced by the prosecution was ruled not complying with the statutory requirements of section 22A of the Evidence Ordinance, Cap 8.  The Magistrate refused to grant further adjournment, and ruled that there was no case to answer.

Reasons for refusal of costs by the Magistrate

5.  The Magistrate noted that:

“ it was common ground that the license of the vessel expired on 18 November 2014 and the vessel remained unlicensed until the Appellant renewed the licence on 17 April 2016.” [3]

[ Note: the date of offence of the 3^rd summons was 19 January 2016.]

6.  The Magistrate ruled that:

“ The limitation of time for prosecution can operate as an effective defence which can lead to an acquittal. However, it has nothing to do with the actus reas or any elements of the alleged offence. I take the view that these 2 summonses are cases that there was ample evidence to support a conviction but such eventuality was not reached just because of technicality. This is one of the positive reasons for not awarding costs …. The costs application for the summonses ESS 10982 and 26227/2016 is dismissed.” [4]

7.  In respect of the 3^rd summons, the Magistrate took the view that:

“ The Prosecution’s failure to prove the Appellant’s ownership has nothing to do with the merits of the defence. … I take the view that summons ESS 26228/2016 is also a case which there was ample of evidence to support a conviction but the Appellant was acquitted due to technicality.” [5]

Grounds of Appeal

8.  The Appellant submitted the ‘Perfected Appeal Grounds’ and his 3-page written submissions, both dated 19 June 2017, coupled with three case authorities. The Appellant has six grounds:

(1) The Magistrate “erred when in exercising his discretion in refusing costs to the Defendant and did not apply the governing principals [sic] in Tsang Wai Ping v HKSAR 2005”.

(2) The Magistrate “erred when in exercising his discretion in refusing costs to the Defendant and did not apply the proper or relevant governing principles laid down in Tong Cun-lin v HKSAR 1999”.

(3) The Magistrate “failed to consider or properly apply the authority and principles in Qamar Sheraz and HKSAR”.

(4) The Magistrate “erred when he refused to order costs and misdirected himself when he concluded that there was ample evidence to support a conviction without ever hearing a Defence”.

(5) The Magistrate “erred when he refused to order costs for the Defendant and or misdirected himself when he apparently did not regard and or his approach undermined or offended the presumption of innocence and further was contrary to the principles in Tsang Wai Ping and HKSAR”.

(6) The Magistrate “erred in concluding that the acquittal of the Defendant was because of a technicality”.

Consideration

9.  I would not itemize each of the grounds of appeal, but will treat the issues in one go.

10.  The law relating to costs in criminal cases is well established. The Court of Final Appeal in Tong Cun Lin v HKSAR [6] held that:

“ When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time … it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

11.  In Ting James Henry v HKSAR [7], the Court of Final Appeal further elaborated that:

“ It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionary exercise. However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”

12.  It is well established that a costs order is a discretionary exercise of power by the trial Judge or Magistrate.  The cases above mentioned make it clear that the conduct of a defendant during the investigation and at the trial will be taken into account.  The court will not just look at the verdict of acquittal per se.

13.  The chronology of events listed above reveals, at least partly, the conduct of the Appellant.

14.  The Operating Licence [Exhibit P2] shows that the number of certificate of ownership is 705378 and the validity period was from 19 November 2013 to 17 November 2014. [8]

15.  On the other hand, the Certificate of Ownership, bearing the same Operating Licence number 705378 and the same serial number of the propulsion engine (40120284693869060) with the ‘record date’ 19 November 2013, states clearly that the owner was the Appellant, BULLEN Christian Anthony.[9]  Part 4 Endorsements of the said Certificate of Ownership states clearly that “This vessel is required to hold a valid Operating Licence and comply with relevant legislation for operating in the waters of Hong Kong”.[10]

16.  The Appellant also renewed the Operating Licence on 27 April 2016. He was the one who paid the licence fee.

17.  The Prosecution called one witness who testified that she inspected the said vessel and discovered that the vessel did not have his certificate of ownership number displayed clearly on the right side of the hull of the vessel.[11]  The Magistrate ruled that the first two summonses were time-barred, and the failure of providing the certificate of ownership in the proper and admissible form led to the acquittal of the 3^rd summons.

18.  The Appellant did not deny that he was the owner of the vessel at the material time, but claimed that the Prosecution failed to prove his ownership.  In fact, if the Appellant was the owner from 19 November 2013 to 17 November 2014, and then he renewed his ownership from 27 April 2016, this court is of the view that a strong and irresistible inference can be drawn that the Appellant remained the actual owner for the whole period.  The Appellant was required to pay the licence fee and inevitably has to show that he was the original owner before he could renew his certificate of ownership.  All along, the Appellant did not claim that he acquired the ownership from a third party.  On the other hand, it is still arguable whether the Prosecution could rely on sections 18 and 19 of the Evidence Ordinance (Cap 8) in relation to copy of document of public nature or official documents respectively in order to rectify the problem.  It is to be stressed that this legal issue is not to be revisited in these appellate proceedings.

19.  All these factors, and the inference that can be drawn are factors that this court should into account when considering the exercise of the discretionary power in awarding costs or not.  As held by the Court of Final Appeal in Ting James Henry (cited above):

“ The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself.”

20.  In my view, the refusal of costs can be justified, not so much on the grounds of acquittal because of technicality, but on the basis that the Appellant in fact brought suspicion on himself, thereby bringing the Appellant within the exceptions to the general rule regarding the award of costs to an acquitted defendant.

Conclusion

21.  In these circumstances, the appeal against the refusal order made by the Magistrate is dismissed.  There is no costs order in these proceedings.