Case Detail

HCMA 740/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 740 OF 2015

(ON APPEAL FROM ESS NO 8856 OF 2015)

_______________________

BETWEEN
	HKSAR	Respondent
and
	BULLEN, CHRISTIAN ANTHONY	Appellant

_______________________

Before: Hon Zervos J in Chambers

Dates of Written Submissions: 24 February and 3 March 2016

Date of Decision: 1 April 2016

_______________________

DECISION ON COSTS

_______________________

Introduction

1. This is an application for costs by the appellant following his successful appeal against conviction for an offence, contrary to section 38(1)(a) and (3) of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D (the Regulation).

2. The appellant, who throughout these proceedings has appeared in person, seeks his costs both at trial and on appeal.

3. The offence for which the appellant has successfully had his conviction quashed is section 38(1)(a) and (3) of the Regulation which reads:

“(1) Each certificated local vessel and each of its ancillary vessels shall at all times have painted on it, or permanently affixed to or mounted on it, on each side of its deck housing where it can best be seen or on each side of the hull of the vessel where it can best be seen, the following marking-
(a) in the case of a certificated local vessel, the certificate of ownership number of the vessel; or
…
(3) If, without reasonable excuse, subsection (1) or (2) is contravened, the owner of the vessel, his agent and the coxswain each commits an offence and is liable on conviction to a fine at level 2.”

4. A key element of this regulatory offence that was addressed at trial given the circumstances of the appellant’s case was whether he had a reasonable excuse for its contravention.

5. It was not in dispute at trial that the appellant’s vessel did not display its ownership number as required by the Regulation and it was therefore incumbent on the appellant to show that he had a reasonable excuse. I found that the Magistrate wrongly rejected the appellant’s excuse and that it justified the non-compliance of the legal obligation under this offence provision.

Appellant’s costs application

6. The respondent opposes the application by the appellant for costs at trial but agrees to his costs on appeal with the qualification that it should be limited to disbursements only.

7. It is well established that a court has no inherent jurisdiction to award costs in criminal proceedings other than when provided by legislation. See Secretary for Justice v Tang Bun [1999] 3 HKC 647.

8. The power of the courts to award costs in criminal proceedings is mainly governed by the Costs in Criminal Cases Ordinance, Cap 492 (the Ordinance) and the Costs in Criminal Cases Rules (the Rules). The Ordinance treats separately, the award of costs to the defendant under Part II and to the prosecution under Part III, but the principles and procedures are basically very similar.

9. Under the Ordinance, section 15 sets out general principles which are stated as follows:

“In any criminal proceedings-
(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;
(b) a court or a judge may have regard to any assessment laid before it or him for their assistance by any party to the proceedings of the amount of costs properly so incurred by any such party;
(c) an order as to costs shall be such as a court or a judge considers just and reasonable;
(d) the amount to be paid in pursuance of an order as to costs shall, unless an order for taxation is made under section 20, be specified in that order;
(e) the question of whether or not an order as to costs ought to be made in respect of any expenses properly incurred by any party to the proceedings in the course of the proceedings, including any proceedings preliminary or incidental thereto, may be adjourned until the end of those proceedings;
(f) a court or a judge may take into account any other order as to costs which has been made in respect of those proceedings.”

10. It is also worth noting section 17 of the Ordinance which concerns costs unnecessarily or improperly incurred which reads:

“Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first-mentioned party to the proceedings by the other party to the proceedings.”

11. The fundamental principle is that an award of costs is not to be punitive but is to be reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred.

Costs at trial

12. On the question of appellant’s costs at trial, the respondent argues that the appellant brought suspicion on himself and/or he had misled the prosecution into thinking the case against him was stronger than it really was. The respondent points out that the appellant had not complied with the Regulation and it was for him to show that he had a reasonable excuse for not doing so which was only revealed at trial. The respondent submits that he is therefore not entitled to his costs at trial. The respondent relies on Cheng Kam Kuen vHKSAR, HCAL 92/2004, 17 May 2005, unreported, per A Cheung J (as he then was), at §§8 to 11, and the principles as stated in R v Kwok Moon-Yan [1989] 2 HKLR 396.

13. I agree with the respondent’s submissions on the question of costs at trial. The present offence is one of strict liability in which, while the prosecution bears the legal burden of proving the elements of the offence, the appellant bears the evidential burden of meeting the exception of a “reasonable excuse”. It was not until the trial that the appellant put forward an explanation for the non-compliance of the Regulation.

14. I am therefore of the view that the appellant is not entitled to his costs at trial.

Costs on appeal

15. The respondent does not oppose the appellant’s costs of the appeal, except that it should be limited to disbursements only as he was not legally represented.

16. A defendant’s entitlement to costs in relation to an appeal from a magistrate is provided under section 8 of the Ordinance which reads:

“Where a judge-
(a) allows an appeal to which section 105 or 113 of the Magistrates Ordinance (Cap 227) applies, in the exercise of his powers under section 120 of that Ordinance; or
(b) in any appeal against sentence imposed by a magistrate, quashes the sentence and in place of it imposes a less severe punishment than that so imposed,
the judge may order that costs be awarded to the defendant.”

17. As mentioned in section 8, costs may be awarded to a defendant where the judge allows an appeal to which section 105 (appeal by way of case stated) or section 113 (appeal from a magistrate on any matter) applies, in the exercise of his powers under section 120 of the Magistrates Ordinance, Cap 227. This section reads:

“(1) On any appeal to which section 105 or 113 applies, the judge may make such orders as to costs, as he may think fit, and may-
(a) where he allows the appeal, direct that there shall be included in any costs to be paid by the respondent to the appellant the costs properly incurred by the appellant in the proceedings before the magistrate, or such fixed sum as the judge may consider reasonable in respect of the costs so incurred by him;
(b) in any case, in which the appeal is from an order or determination in respect of or in connection with an offence, in lieu of directing a taxation of costs, fix the sum to be paid by way of costs by either party to the appeal,
and in fixing, for the purposes of this subsection, the amount of any costs to be paid to a party to an appeal shall have regard to his means.”

18. Section 8 contemplates the judge exercising his powers under section 120 which provides under subparagraph (a), where he allows the appeal, to make an order as to the appellant’s costs before the magistrate, and under subparagraph (b), where in any case in which the appeal is from an order or determination of an offence, to fix the sum to be paid by way of costs by either party to the appeal.

19. The appellant brought his appeal against conviction and sentence under section 113.

Respondent’s submission against costs

20. The respondent takes issue with the applicant’s claim for purported hours that he had spent on the case. The respondent questions how “time spent on the case” can be justified as expenses incurred, let alone, properly incurred, as illustrated by the appellant’s claim for 5 hours spent attending court for the appeal hearing which lasted a little short of 2 hours. The respondent also points out that the original hearing was adjourned due to the appellant’s late filing and service of his written submission contrary to the Court’s directions. The respondent therefore submits that the appellant should only be awarded his disbursements for the purposes of this appeal only, if these can be shown to be properly incurred.

21. The appellant argues that he has spent a certain number of hours on the appeal in relation to his written submission and oral argument at the hearing. He refers to Order 62, rule 28A of the Hong Kong Civil Procedure, 2016, which concerns costs of a litigant in person. This provides that on a taxation of costs of a litigant in person, such costs may be allowed as if the work and disbursements to which the costs relate had been done or made by a solicitor on a litigant’s behalf. Where the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he should not be allowed in respect of the time reasonably spent by him on the work of a sum of not more than $200 an hour.

22. Order 62 applies to all proceedings in the High Court with certain additions and exceptions specified under Rule 2. In Hong Kong Civil Procedure, 2016, at §62/2/1, the effect of the Rule is briefly discussed, where it is stated that the Ordinance and the Rules have very limited application with the implication that the Order where appropriate would apply. See also §62/App/95 where the statutory scheme under the Ordinance is set out. Key to the question of costs are the applicable principles in the exercise of discretion as noted in Tong Cun-lin v HKSAR (1999) 2 HKCFAR 531 at 535 and Hui Yui Sang v HKSAR (2006) 9 HKCFAR 308 at 314.

23. The term “costs” is not defined in the Ordinance but guidance is provided under the Rules where it states that such costs should be allowed in respect of such work as appears to be actually and reasonably done, and such disbursements as appear to have been actually and reasonably incurred, which are reasonably sufficient to compensate the claimant for any expenses properly incurred by him. See Rules 6 and 7.

24. The appellant has submitted an itemised bill of costs calculated on the basis of $200 an hour and disbursements but without distinguishing expenses incurred in relation to the trial and the appeal. I have assessed the bill and on what I consider to be a sum reasonably sufficient to compensate the appellant for expenses properly incurred by him, I will fix the sum of costs on appeal at $5,000.

Conclusion

25. Accordingly, I award to the appellant costs on appeal of $5,000. As to the costs application, I make no order as to costs.

	(Kevin Zervos) Judge of the Court of First Instance
	High Court

Ms Audrey Parwani, PP of Department of Justice, for HKSAR

The appellant in person

HCMA 740/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 740 OF 2015

(ON APPEAL FROM ESS NO 8856 OF 2015)

_______________________

BETWEEN
	HKSAR	Respondent
and
	BULLEN, CHRISTIAN ANTHONY	Appellant
_______________________

Before: Hon Zervos J in Court

Date of Hearing and Judgment: 17 February 2016

Date of Reasons for Judgment: 23 February 2016

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REASONS FOR JUDGMENT
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Introduction

1. The appellant appealed his conviction after trial in the Magistrates’ Court, before Deputy Special Magistrate, Mr Simon K F Ho, for an offence contrary to section 38(1)(a) and (3) of the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap 548D, and sentence of a fine of $2,000.

2. At the conclusion of the appeal hearing, I allowed the appeal and quashed the conviction and set aside the sentence. I said that I would later hand down my reasons for my decision which I now do.

The offence provision

3. The offence for which the appellant was convicted is section 38(1)(a) and (3) of the Regulation which reads:

“(1) Each certificated local vessel and each of its ancillary vessels shall at all times have painted on it, or permanently affixed to or mounted on it, on each side of its deck housing where it can best be seen or on each side of the hull of the vessel where it can best be seen, the following marking-
(a) in the case of a certificated local vessel, the certificate of ownership number of the vessel; or
…
(3) If, without reasonable excuse, subsection (1) or (2) is contravened, the owner of the vessel, his agent and the coxswain each commits an offence and is liable on conviction to a fine at level 2.”

4. A key element of this regulatory offence is whether a person had a reasonable excuse for its contravention.

The prosecution case

5. The prosecution case was that on 7 October 2014 at Lok Tik Wan, the appellant, who was the owner of a local vessel, without reasonable excuse, had failed to paint, permanently affix to or mount at all times on the vessel, the certificate of ownership number on the deck housing or on the hull of each side of the vessel.

6. It would appear it was not in dispute that on the day in question the vessel which was owned by the appellant did not display its ownership number as required by the Regulation. The appellant owned a cruiser, being an inboard boat, which is listed as a local vessel under Schedule 1 of the Regulation. The issue at trial was whether the appellant had a reasonable excuse.

The defence case

7. The Magistrate summarised the defence case in his Statement of Findings as follows:

“8. The defence case is as follows. D owned some boats before purchasing the Vessel in 2013. He was also qualified to operate boats. He bought the Vessel for about HK$200,000 and kept it in the Royal Hong Kong Yacht Club for about 6 months. It was later towed to and anchored in Lo Tik Wan. The engine of the Vessel was damaged when it arrived at Hong Kong. It could not move because the engine had been taken out of it.
9. In the Royal Hong Kong Yacht Club, D glued the Number to the Vessel by some plastic laminate. In or about mid September 2014, there was a typhoon. After the typhoon, D inspected the Vessel. He found a little superficial damage to the Vessel. Nevertheless, he did not check whether the Number was still on the Vessel. The reason is that this was not his top priority.
10. D did not know when the Number came off from the Vessel. He did not take any further step to check this until 7 October 2014.
11. D did not carry out any repairs to the Vessel. Nor did he produce any photographs to prove the damage.”

8. The defence case was that the appellant owned several boats before purchasing the boat in 2013. The boat was purchased from overseas but had sustained engine damage when it arrived in Hong Kong. As a consequence, the engine had been taken out of the boat and could not operate. He registered the boat and was issued with a certificate of ownership number. He put plastic laminate covers displaying the ownership number onto the boat (the ownership covers). He kept the boat at the Hong Kong Yacht Club for about six months and later towed it to Lok Tik Wan where it was anchored.

9. The appellant in giving evidence explained that the boat was not in use because there was an outstanding insurance claim for the costs of repairs to the damaged engine. He also explained that sometime in mid September 2014 there was a typhoon and the boat broke from its mooring and was washed onto the beach. As a consequence, the boat sustained some superficial damage. He did not check whether the ownership covers were still on the boat as he was more concerned about securing the boat and checking it for damage.

The Magistrate’s rejection of the appellant’s evidence

10. The Magistrate convicted the appellant because he rejected his evidence and did not find that he had a reasonable excuse for the contravention of the regulatory offence. The basis of the rejection of the appellant’s evidence was reasoned as follows:

“20. I now turn to the defence evidence. It find it inherently improbable that given that after the typhoon D checked the vessel for damage, he did not check whether the Number was still on the Vessel. Further, no evidence of damage to the Vessel has been shown in the photographs in P3. As mentioned above, D has not produced any photographs to prove the damage. I do not find D to be a honest and reliable witness. I do not accept his evidence.
21. Even if I accept D’s evidence to be true, I do not find any reasonable excuse for his failure to paint or affix the number on or to each side of the vessel. In a nutshell, D’s case is that the engine of the Vessel was not working and that he was not using it. These matters are irrelevant to D’s statutory duty under the Regulation. There was no evidence that during the period from the day of typhoon to 7 October 2014, D took any step to ensure that the Number was on the Vessel.”

11. As can be seen from the Magistrate’s reasoning, he did not accept the evidence of the appellant on the basis that he found it inherently improbable that when checking the boat for damage, the appellant did not check whether the ownership number was still on it and that the photographs of the boat, taken on the day of the offence, did not show any damage to it, nor had the appellant produced any photographs to prove damage to the boat.

12. The Magistrate went on to reason that even accepting the appellant’s evidence as true, he did not find any reasonable excuse for his failure to paint or affix the ownership number on or to each side of the boat because the engine was not working and he was not using it, which he considered irrelevant, and there was no evidence that he took any steps to ensure that the ownership number was on the boat from the day of the typhoon to the day of the offence.

The appellant’s reasonable excuse

13. That was not the appellant’s case. His case was that he put plastic laminate covers with the ownership number on the boat which probably came off during the typhoon. When he attended to the boat after the typhoon, he had not checked whether the ownership covers were still on the boat, as he was more concerned about ensuring the safety of the boat by securing it on its mooring and checking it for damage which he said was superficial.

14. The boat had been sitting idle at Lok Tik Wan and was not in use, and therefore he had not had the opportunity to check whether the ownership covers were still on the boat.

The undisputed evidence

15. At trial, the appellant’s evidence was not seriously challenged in cross examination.

16. The undisputed evidence was that he had purchased the boat from Florida and when it arrived in Hong Kong it had a damaged and unusable engine; the appellant changed the Florida registration number to a local registration number at the Hong Kong Yacht Club which he affixed with plastic laminate covers on the boat; the appellant towed the boat to Lok Tin Wan where it was moored; the boat was moored there awaiting an insurance claim to install a new engine; the boat had broken free from its mooring during a typhoon in mid September 2014 and had been washed up onto the beach; when the appellant attended to the boat after the typhoon he was more concerned about the seaworthiness and safety of the boat than checking whether there had been any damage to the plastic laminate covers; the boat had sustained only superficial damage; the appellant was unaware when the plastic laminate covers had come off until he was informed of the fact on 7 October 2014; when he was notified that the ownership number was not displayed on the boat he immediately arranged to affix onto the boat plastic covers with the ownership number on it; and the appellant had not been using the boat as he was awaiting settlement of the insurance claim to replace the damaged engine.

Reasonable excuse

17. When addressing the defence of “reasonable excuse” it is of paramount importance to bear in mind the legislative context of the defence, and the fact that it only arises for consideration after the prosecution has established the elements of the offence beyond reasonable doubt. Although, there remains the onus on the prosecution to disprove, beyond reasonable doubt, the existence of any reasonable excuse.

18. A reasonable excuse includes any excuse which would be accepted by a reasonable person to justify the non-compliance of a legal obligation. It will depend on the circumstances of the case and the purpose of the provision to which the defence of “reasonable excuse” is an exception.

19. The general approach taken by courts when considering the defence of reasonable excuse is to first examine and identify the excuse that has been advanced by the defendant for contravening the law; secondly assess whether the excuse was genuine; and thirdly assess if the excuse was reasonable. In carrying out this exercise, the defendant’s belief or state of mind is a relevant factor and may afford some assistance to the court, but the final answer will always come from an objective assessment of the particular facts of each case. Such an assessment requires a consideration of not merely the defendant’s belief and state of mind but the application of community standards in order for the court to determine whether the defendant’s conduct is acceptable to the community: Mark and Ors v Henshaw (1995) 155 ALR 118, 120 applied in HKSAR v Adams Secuforce (International) Ltd [2008] 1 HKLRD 207, 211.

20. When considering community standards, it will be necessary to take into account not only the circumstances of the offence but also the purpose of the provision to which the defence of reasonable excuse applies. See Securities and Futures Commission v Lam Fai Man, HCMA 465/2015, 8 December 2015, unreported, at §§32 to 36.

21. See also Hin Lin Yee & Anor v HKSAR (2010) 13 HKCFAR 142 and Kulemesin Yuriy & Anor v HKSAR (2013) 16 HKCFAR 195, on the discussion as to the legal principles in relation to the mental element of statutory offences.

The issue of reasonable excuse

22. The issue for the Magistrate was whether the appellant had a reasonable excuse. He rejected the appellant’s evidence because he found it was inherently improbable that when the appellant was checking the boat for damage he did not check whether the ownership covers were on it.

23. I have to disagree with that reasoning given that the undisputed evidence was that the boat had been washed up onto the beach during the typhoon, having broken free from its mooring, and that the appellant’s attention was to secure and ensure the safety of the boat at the time. It is completely understandable that an owner of a boat in these circumstances would be mainly concerned about ensuring the seaworthiness and safety of the boat, and hence it was not unreasonable that the appellant would not have noticed that the ownership covers were missing.

24. It is not disputed that the boat was not in use by the appellant and therefore there would not have been any other opportunity for him to have noticed that the ownership covers were missing.

25. It is worthwhile noting that the expression “inherently improbable” has particular meaning and application when used to analyse evidential matters. “Inherent” means involved in the constitution or essential character of something. “Improbable” means not probable, not likely to happen or be true. Thus, by definition, evidence that is inherently improbable is evidence that by its very nature, or on its face, could not be true. For evidence to be inherently improbable what is claimed to have occurred in fact could not have occurred or it is obviously false on its face.

26. I therefore cannot come to the conclusion on the evidence that it was inherently improbable that the appellant when checking the boat for damage did not check whether the ownership number was still on display on the boat. I am of the view that the Magistrate was plainly wrong to have made such a finding.

27. It would also appear that the Magistrate found that the appellant was not an honest and reliable witness as he had not produced any photographs to prove that there was damage to the boat or could damage be seen from photographs of the boat taken at the time of the offence. There are two points to be made. First is that the appellant’s evidence was that the boat sustained superficial damage when it was washed onto the beach. Secondly, the photographs of the boat were taken several weeks after the typhoon and from a distance. I do not see that this is a basis to find that the appellant was not an honest and reliable witness.

28. On the undisputed evidence, in my view, the appellant had established a reasonable excuse for the failure to affix the ownership number on the boat.

29. The appellant had registered the boat and had an ownership number for it. See Exhibit P8 which was dated 19 November 2013. He had affixed the particulars of the ownership number onto the boat. The boat had broken from its mooring during a typhoon and was washed onto the beach. The appellant when attending to the boat after the typhoon was more concerned about making sure the boat was seaworthy and safe by securing it to its mooring. The appellant at the time did not notice that the ownership number was missing. It would appear, accepting the appellant had affixed ownership covers onto the boat that more than likely they came off during the typhoon. The boat was not in use and the appellant would not have had the further opportunity to check or notice whether the ownership covers were affixed on the boat.

Conclusion

30. For the foregoing reasons, I allowed the appeal and accordingly quashed the conviction and set aside the sentence.

	(Kevin Zervos) Judge of the Court of First Instance
	High Court

Ms Audrey Parwani, PP of Department of Justice, for HKSAR

The appellant in person

HKSAR v. BULLEN, CHRISTIAN ANTHONY

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