HKSAR v. TANG HING WONG

HCMA433/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.433 OF 2004

(ON APPEAL FROM FLCC 2561 OF 2003)

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J U D G M E N T

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1. The appellant was convicted after trial of the following offences : 'Dangerous Driving' (Charge 1); 'Criminal Damage' (Charge 2); 'Driving whilst Disqualified' (Charges 3 and 5); and 'Using a Vehicle without Third Party Insurance' (Charges 4 and 6). He now appeals against these convictions.

At trial

2. The charges can be divided into two groups. Charges 1 to 4 relate to the driving of a "black Chaser" FS990 at about 9:00 a.m. on 30 August 2003. Charges 5 and 6 relate to the driving of a "white Honda Accord" JS201 a few hours earlier. These offences occurred in the Sheung Shui - Fanling area.

3. What allegedly took place was that the appellant ran into a rampage in the black Chaser (Charge 1). He ended up backing hard into a taxi (Charge ). He escaped but left behind a female passenger. Through her the police were able to find out about his identity. The same lady disclosed that the appellant had driven her and a few others to a disco in a white Honda Accord on the previous night. Subsequent investigation revealed that the appellant was at the time disqualified from driving (Charges 3 and 5), hence using both the above-mentioned cars without third party insurance (Charges 4 and 6).

4. The rampage and its immediate aftermath were summed-up by the magistrate in the following manner (pp.2-3 of the Statement of Findings) :

"... The evidence showed that the driving of that vehicle, on that occasion, was dangerous in that it fell far below the driving standard of a reasonable and careful driver.

The vehicle was seen by a police officer. His attention was drawn to the vehicle by a fast lane change. He then moved out to attempt to stop the vehicle. That vehicle sped off along Pak Wo Road, running through a red light at the junction of Pak Wo Road and Tai Wo Service Station Road.

This maneuver was said to have caused two vehicles, a public light bus and a red coloured private car to have to take avoiding action because of the high speed of the vehicle as it was driven along the road. The vehicle reached the junction of Pak Wo and Wah Ming Road, where it was blocked in front of a red light. The driver of the vehicle was told to stop by the police officer.

The driver then put the vehicle FS990 into reverse gear and drove the car in reverse at high speed along Pak Wo Road, back towards the direction of Jockey Club Road. This driving was against the traffic flow and was clearly dangerous and reckless in its effect. Because of this, the vehicle ended up in a collision with a taxi which was proceeding in the correct direction along the road.

There was an impact on the taxi and, also, the vehicle itself was rammed up onto the central divider and could not move. The driver was seen to leave the vehicle and escaped.

The police officers approached the vehicle and found a passenger inside, a female. The female passenger, is a Madam Hon. She was subsequently questioned about what had happened. And she, in the course of evidence, identified the defendant as being the driver of the vehicle. She was the first prosecution witness."

5. For the defence, it was admitted that the appellant was the registered owner of both vehicles. It was admitted that the appellant's keys, including house key, were left in the black Chaser. It was not disputed that the driving of the Chaser was dangerous, and that if the appellant was the driver of both the Chaser and the Accord, he should be guilty of all the offences. His defence was that on both occasions, another man "Ah Wai" was driving. PW1 lied about it because unbeknown to her boyfriend, she was seeing Ah Wai in secret. She pointed her finger at the appellant because they were on bad terms.

6. The magistrate summed up part of the defence case as follows (pp.5-6 of the Statement of Findings) :

"The evidence of the defendant was that he had met the first prosecution witness at the Cyber Disco in Tsim Sha Tsui about two weeks before the 30 August. And he had made fun of her, at that time.

He had again met the first prosecution witness on the evening of 29 August, when they had gone to her place in Fan Ling. They had gone in a white Accord and it had been driven by another person. They had picked her up and, again, been out. There was some annoyance at the fact that she was late.

They went to the 348 Disco and, within the 348 Disco, the defendant said that he and the first prosecution witness had not particularly got on. They had been annoyed about her being late, they had not got her a seat to sit in. She tried to get them to drink something called "K-water". The defendant had made fun about her weight.

In any event, the defendant said he had been tired and fallen asleep or got drowsy and dizzy. And he seemed to suggest that, at some point during the course of that, his wedding ring had been taken. He said that the first prosecution witness had gone back home with the man who had driven the car, which is Ah Wai.

Then Ah Wai had taken him home. He became aware that his wedding ring had been taken and he rang PW1 up on her landline, and had asked for it back. He said that someone had seen her taking it. And she admitted that she had taken it and said she would return it.

Then the defendant says Ah Wai had asked to try out the vehicle FS990. The defendant wanted to sell it because his licence was suspended. He had given Ah Wai the ignition key and also the other keys, which included his home key. Ah Wai had said he would get the wedding ring back from PW1."

7. In the end, the magistrate found PW1 both truthful and reliable. He did so having considered the fun-loving girl that PW1 obviously was, her relationship with the man whom the defence said was her "affair", the veracity of her as opposed to the appellant's account of how she came to have the latter's wedding ring, her denial of the allegations made against her and all other matters that she was "extensively and skillfully cross-examined" about.

On appeal

8. The appellant filed three grounds.

9. Ground 1 :

"The learned magistrate has failed to consider, sufficiently or at all, the discrepancy in the identification evidence as to who the driver of FS990 was at the material time given by PW1 Ms Hon Sze Yu and PW3 Sgt 4549 respectively."

10. PW3 was a police sergeant on motorcycle. He was the officer who saw the quick lane change, gave chase and witnessed the black Chaser's final impact on the taxi. Apart from PW1, he was the only other person who had seen the driver. He attended an identification parade six days after the incident and picked someone other than the appellant. The appellant's complaint is that the magistrate failed to consider this point in his verdict.

11. In my judgment, there is nothing to this ground.

12. It is true that the magistrate made no mention of this fact in his Statement of Findings. But he did briefly engage counsel on the point during defence final submissions. By repeatedly pointing out that the prosecution did not rely on PW3 for identification, he obviously took the view that it was unimportant (p.117T-p.118M of the Transcript). This attitude is perfectly understandable given PW3's evidence that "there was only once when we were face to face and it lasted several seconds" (p.186O of the Transcript). This is not to mention that they were side by side and in motion.

13. Ground 2 of the appeal reads :

"The learned magistrate erred in failing to warn himself that the defendant did not have the burden of proving anything, and in considering and rejecting the defendant's evidence first and then coming back to conclude that PW1's evidence is credible and reliable."

14. Written submissions adopted orally by counsel have it that by :

".... looking at his Statement of Findings as a whole, one would inevitably have the impression that the learned magistrate first considered PW-1's evidence, found a ring of veracity to it, then considered the defendant's (and DW-2's) evidence, disbelieved it, and eventually found PW-1's evidence to be true beyond a reasonable doubt."

In support, the following words were quoted of the magistrate :

"In determining the veracity of the first prosecution witness' evidence, I had to consider the evidence of the defendant."

15. I have no impression of the sort mentioned.

16. There is no fixed formula as to how a verdict should be written. In any event, apart from outlining the prosecution's and defence cases, what the magistrate did in his Statement of Findings was consider PW1's evidence, resolve the controversial issues, turn to the defence witnesses, explain why he disbelieve them and then announce his verdict by applying the criminal standard of proof. This is not uncommon among judges sitting at once as juries. The fact that he passed no conclusive remarks about PW1 upon first analyzing her evidence is a question of style and presentation. It does not mean that he had had any confusion about how he should evaluate the matter before him. Equally, the magistrate was simply saying that he had to consider the defence case in the quote quoted. Unless he did so, his deliberation would be incomplete, and he could never be sure that the prosecution had proven their case beyond the reasonable doubt. That is all that should be read into it.

17. Ground 3 :

"The learned magistrate's finding that PW-1's evidence is credible and reliable is against the weight of evidence and he failed to consider sufficiently or at all the inconsistencies therein and its discrepancies with the evidence of other prosecution witnesses."

18. Two examples are given. The first involves PW1 telling the police that she had absolutely no idea what the name of the driver was, and then subsequently changing her mind and telling the police that the name was "Ah Wai". The second example involves PW1 denying any intention to leave the scene after collision, to the contradiction of the evidence of PW2, the taxi-driver.

19. I am not persuaded that these are valid examples.

20. P.149E-G of the Transcript shows that "absolutely no idea" was a phrase used by counsel. PW1 never conceded to it. What she said in correction to counsel's suggestion was that, "I think I said I did not quite remember the name of the driver." Unchallenged, this initial reaction to police inquiry was consistent even to the point of trial when PW1 still said that she hardly knew the appellant (whom she said was the driver) and that other people seemed to call him "Ah Wai" (but not the same man the defence said was her closest boyfriend) (p.148K-P; p.151B-D). Plainly, there was no inconsistency for the magistrate to resolve on this point.

21. The same applies to the second example in my judgment. It is one thing to want to get out of a crashed car; human instinct compels one to do so. It is another thing to want to leave the scene of an accident. As to whether the taxi-driver, who had just come out of the hit, or, for that matter, PW1, who must have been equally shocked, could make that fine distinction when recalling what was said by one and not the other, is as good as everyone's guess. This is obviously what the magistrate thought when he dealt with the point in general terms (p.8 of the Statement of Findings) :

"... it was suggested that she had, in fact, said to the person who was driving the vehicle, she could not get out of the car; she had been trying to get out. And the taxi-driver had said something like that.

Her own evidence was that the driver - who she said was the defendant - actually told her to get out. And it may not be surprising that she had not been able to get out as her side of the vehicle was crushed."

22. The bottom line is that the magistrate was alive to the so-called contradiction which, objectively speaking, is but a minor issue in the full factual matrix. He cannot be faulted for placing no importance on it.

Conclusion

23. The appeal is dismissed. The appellant is to serve his sentence immediately.