Court of First Instance allowed appeal against order refusing trial costs
HKSAR v Ching Ming Ho (程銘皓)
16 May 2025
Court of First Instance allowed an appeal against an order refusing trial costs by the Appellant who was acquitted of “dangerous driving” and convicted of “careless driving” on his own plea.
The Appellant was involved in a traffic accident at the junction of Wuhu Street and Marsh Street. The Appellant’s case was that he had mistaken the green light for turning left as the green light for turning right and therefore entered the junction early, causing the accident. On this basis, the Appellant pleaded guilty to “careless driving” but not guilty to “dangerous driving”. The Trial Magistrate found that the evidence was insufficient to find that the Appellant failed to abide by the traffic light intentionally, and the accident was due to his temporary lapse of concentration. As such, the Trial Magistrate acquitted the Appellant of “dangerous driving”. However, the Trial Magistrate refused the Appellant’s costs order as “the Prosecution’s evidence is strong” and the Appellant had “brought suspicion on himself”.
The Court of First Instance found that, upon considering all the evidence at trial by way of rehearing, the Appellant had not brought suspicion onto himself in relation to “dangerous driving”. When considering the conduct of an acquitted defendant, the trial court should consider whether suspicion was brought to the “more serious (acquitted) charge” instead of the “less serious charge (which a guilty plea has already entered into)”: [20]. On rehearing, DHCJ E Lee found that the trial magistrate erred in refusing the costs order and awarded trial costs to the Appellant.
Simon So appeared with Jack Hui for the Appellant in the appeal against order refusing trial costs. The full judgment was published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=168757&currpage=T. They also represented him at trial which the magistrate found him not guilty of dangerous driving (but only guilty of careless driving on his own plea).
The Appellant was involved in a traffic accident at the junction of Wuhu Street and Marsh Street. The Appellant’s case was that he had mistaken the green light for turning left as the green light for turning right and therefore entered the junction early, causing the accident. On this basis, the Appellant pleaded guilty to “careless driving” but not guilty to “dangerous driving”. The Trial Magistrate found that the evidence was insufficient to find that the Appellant failed to abide by the traffic light intentionally, and the accident was due to his temporary lapse of concentration. As such, the Trial Magistrate acquitted the Appellant of “dangerous driving”. However, the Trial Magistrate refused the Appellant’s costs order as “the Prosecution’s evidence is strong” and the Appellant had “brought suspicion on himself”.
The Court of First Instance found that, upon considering all the evidence at trial by way of rehearing, the Appellant had not brought suspicion onto himself in relation to “dangerous driving”. When considering the conduct of an acquitted defendant, the trial court should consider whether suspicion was brought to the “more serious (acquitted) charge” instead of the “less serious charge (which a guilty plea has already entered into)”: [20]. On rehearing, DHCJ E Lee found that the trial magistrate erred in refusing the costs order and awarded trial costs to the Appellant.
Simon So appeared with Jack Hui for the Appellant in the appeal against order refusing trial costs. The full judgment was published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=168757&currpage=T. They also represented him at trial which the magistrate found him not guilty of dangerous driving (but only guilty of careless driving on his own plea).