HKSAR v. CHAN KIN SHING

[English Translation - 英譯本]
HCMA 114/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 114 OF 2014

(ON APPEAL FROM KCS 10218-10220/2013)

______________________

______________________

REASONS FOR JUDGMENT

1. The appellant faced three charges:

Summons 10218/2013

Careless driving, contrary to section 38(1), Road Traffic Ordinance, Cap 374 of Laws of Hong Kong (Charge 1);

Summons 10219/2013

Failing to stop after an accident (injury), contrary to sections 56(1)(a) and 56(5) of the abovementioned Road Traffic Ordinance (Charge 2);

Summons 10220/2013

Failing to report after an accident (injury), contrary to sections 56(3) and 56(6) of the abovementioned Road Traffic Ordinance (Charge 3).

2. The appellant pleaded not guilty, and the case was tried before Mr Robin Yue, Deputy Special Magistrate at the Eastern Magistrates’ Court.  After trial, the appellant was convicted of all three charges and fined $2,500, $1,500 and $1,500 respectively.

3. The appellant requested the magistrate to conduct a review.  The convictions were upheld after the review hearing.

4. The appellant appealed against the convictions.

5. After the hearing, I allowed the appeal, quashed the convictions and set aside the fines.  I also ordered that costs of the trial and the appeal be awarded to the appellant, to be taxed by a master if not agreed.  I now give my reasons.

The prosecution case

6. Putting the prosecution case briefly, on 17 December 2012, while driving a taxi southbound on Cheong Wan Road near the entrance to the coach carpark, the appellant drove carelessly and hit and injured the left hand of a coach driver surnamed Chow (transliteration).  The appellant did not stop after the accident, nor did he make a report at a police station in person as soon as possible and not later than 24 hours after the accident.

Mr Chow’s testimony

7. Mr Chow testified that at the material time, he was standing on the kerb at the entrance to the car park, which was “less than one metre, almost one metre” from the roadway.  On hearing someone shouting “watch out”, he turned to the left and saw a taxi going past on his left.  His left hand moved, but he was not sure if it was on the pavement (kerb) or on the roadway when his left hand moved.  The offside front rearview mirror of the taxi hit his left wrist.  Mr Chow shouted out loudly, “[You] hit me,” but the taxi sped up and left.  Mr Chow heard someone swearing onboard the taxi.

8. Mr Chow jotted down the registration number of the taxi and then made a report to the police.  Later on, he went to the hospital and was told by the doctor that he had got bruise(s) and was granted sick leave for one day.

9. Under cross-examination, Mr Chow agreed that where he stood was about one metre from the roadway.  He was asked how far his left hand was away from his body when it moved.  He demonstrated and showed that his left hand was about two palms away from his body.  Mr Chow then said, “Right!  That’s about one metre.”

10. The appellant gave a written statement under caution on 9 January 2013, in which he alleged that on the day in question, a male deliberately hit the offside rearview mirror of the taxi that he was driving.  At that time, the appellant thought that the person would “falsely accuse” him for the purpose of seeking compensation.  In fact, he himself and fellow taxi drivers had come across similar incidents before, and therefore he just ignored that person and drove away.  Subsequently, the taxi owner told him that the police were looking for him for investigation.  When being asked if he “made a report by himself” afterwards, the appellant said that he did not because it was not a traffic accident and he thought it was a passer-by deliberately hitting the rearview mirror of his taxi.

The defence case

11. The appellant did not testify or call any witness.

Argument in defence submission

12. At the trial, counsel acting for the appellant only submitted on where Mr Chow was at the material time.  Basically, the defence contended that Mr Chow alleged he was then about one metre away from the roadway but his demonstration showed that his left hand was only about two palms away from his body, which was different from the one metre that he had said.  Therefore there was a “grave doubt” in the case and the benefit of the doubt should be given to the defendant (pages 47M to 48B of the appeal bundle).

The magistrate’s findings

13. In respect of the above submission made by the defence, the magistrate held as follows (paragraphs 31 to 36 of the statement of findings):

“31. Defence counsel succinctly submitted that if the kerb on which the prosecution witness stood was almost one metre from the roadway, his left wrist could not possibly have had any contact with the vehicles on the road. According to his demonstration in court, the distance between his left hand and his body before the collision was less than one metre.

32. I have carefully considered the demonstration of the prosecution witness in court and his explanation under cross-examination. When defence counsel pointed out to the witness that the distance between his left hand and body was equivalent to about two palms, the witness said, ‘Right! That’s almost one metre.’

33. Defence counsel did not pursue or point out to the witness the actual distance of one metre. It was only in the halfway submission that he took out a measuring tape and asked the court to consider the actual distance of one metre.

34. I would not criticize the defence tactics, but the mere reliance on the above cross-examination is not sufficient to convince the court that the prosecution witness has deliberately suggested a shorter distance in court when knowing full well how long one metre was.

35. The prosecution witness only subjectively thought that one metre was equivalent to about two palms. I also think that not every person is able to be precise about the actual distance of one metre.

36. In my view, the distance between the kerb on which the prosecution witness stood and the roadway and that between his left hand and the body before the accident as described by him are also approximations only.” [emphasize added]

14. The magistrate was satisfied with Mr Chow’s testimony that the rearview mirror of the taxi had hit his left wrist.  He found that the appellant’s manner of driving fell below the standard required of a prudent and cautious driver; the appellant did not stop after the accident, nor did he report the accident in person at the nearest police station or to any police officer as soon as reasonably practicable, and in any case not later than 24 hours after the accident.  The magistrate convicted the appellant of all three charges.

Application for review

15. The appellant was subsequently represented by another counsel (namely Mr Edward Chan of counsel who acted for him in the appeal) and applied to the magistrate for a review.  Although in the review, the appellant still took issue on the distance between where Mr Chow was standing and the roadside, most of the time was spent on the appellant’s request for re-calling PC34556 so as to present to the court that the appellant went to the police station and recounted the incident to that police constable at 3:20 pm on 17 December 2012, and hence the conviction of Charge 3 was unsafe and unsatisfactory.

Ruling in the review

16. In respect of the issue on “distance”, the magistrate rejected the appellant’s argument that Mr Chow’s testimony was inherently improbable in the circumstances at the material time.

17. The magistrate said that the appellant had not reported an “accident” at the police station but only recounted an “incident”.  The appellant has clearly stated in his cautioned statement that he thought there had been no accident and thus he had not “made a report by himself”.  At the trial, the appellant elected not to call that witness, and in the review application, he failed to give any reasonable explanation as to why that witness had not been called at the trial.  The magistrate refused the application for adducing additional evidence.

Grounds of appeal

18. The appellant has put forward the following grounds:

“1. The defence in their submission queried how the appellant’s taxi could have hit [Mr Chow’s] left hand if, according to him, he was standing less than or almost one metre from the roadway. This was the only argument put forward by the defence at the trial. However, the magistrate took the view that the defence had the duty to follow up with [Mr Chow] the issue of how long the so-called one metre was and clarify his understanding of one metre, and the magistrate finally found that not every person was able to be precise about the actual distance of one metre. This proposition is wrong and cannot stand, and also renders his verdict unjust:

(a) One metre is an ordinary concept that everybody recognises, of which no follow-up is necessary.

(b) Since one metre was part of the testimony of [Mr Chow], in law it is the duty of the prosecution and not the defence to clarify.

(c) In the case that neither party has made clarification, the benefit of doubt should be given to the defendant.

2. If the argument in the above first paragraph stands, Charges 1, 2 and 3 simply fail.

3. In the review, defence counsel asserted that the appellant had in fact gone to the police [station] to give an [account] on the day in question, which was recorded in another statement given by PC34556 and the brief facts of the case, and therefore Charge 3 against the appellant could not be established. However, the court had erred in:

(a) refusing at the review to look into those documents, or make enquiry with the prosecution, or allow to have PC34556 called.

(b) deciding if new evidence should be admit[ted] on the basis of whether trial counsel had requested to call PC34556 instead of the truth of the matter and the principle of fairness.

(c)     further saying, ‘According to section 56(3) of the Road Traffic Ordinance, the appellant is required to report the accident in person at the nearest police station or to any police officer, namely that taxi KL6245 had had a collision with [Mr Chow], causing injury to [Mr Chow’s] left wrist, and not merely recounting the incident.’ This had gone beyond the statutory requirement and was an error in law. The mag[istrate]  speculatedabout the content of the new evidence without accepting or looking into it, which was an error in principle.”

My consideration

19. A magistracy appeal is held by way of “rehearing” on the evidence before the trial court (supplemented by such further evidence as the appellate court may admit), see Chou Shih Bin v HKSAR[1]. In my view, where the facts of the case are concerned, the appellate court has to recognise that the magistrate had the advantage of seeing and hearing witnesses giving evidence in court, and the judge on appeal cannot rely on the transcript in determining whether a witness is credible or reliable, seeRaymond Chen v HKSAR[2].  The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  But where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable, or that the magistrate has misquoted, or omitted, or failed to consider any significant aspect of the evidence, the conviction can be rendered unsafe and unsatisfactory.

20. I agree with Mr Chan’s argument in his first ground of appeal that the defence was not obliged to prove anything.  In cross-examination, the defence raised the doubt as to whether Mr Chow’s left hand could have been hit by the rearview mirror of the taxi driven by the appellant if Mr Chow’s left hand was two palms away from his body whilst he was on the kerb about one metre away from the roadway.

21. The defence is only required to raise the doubt in cross-examination but is not obliged to clarify it.  If the prosecution or the magistrate thinks that clarification is necessary, they can definitely do so.

22. The wording used by the magistrate in paragraph 33 of his statement of findings gives an impression that he was blaming the defence for not only failing to clarify but also waiting until the submission stage before taking out a measuring tape to show the distance of one metre.  True, that the defence took out a measuring tape appears to be somewhat dramatic, but the point is that the distance of one metre is not an extraordinary concept.  If what the witness described was 20 metres, it would be very likely that he was unable to tell precisely how far it was.  However, Mr Chow was a professional driver and was even a coach driver by profession, and there appeared to be no particular reason for him to be unable to tell actually how far one metre was.  Why did he in his demonstration say that the distance of two palms was one metre?  It is true that no one has ever followed up.

23. More importantly, the magistrate said that “mere reliance on the above cross-examination is not sufficient to convince the court that the prosecution witness has deliberately suggested a shorter distance in court when knowing full well how long one metre was”.

24. It is not the defence’s allegation that Mr Chow had deliberately suggested a shorter distance, they only pointed out that Mr Chow on one hand said the distance was one metre and on the other hand showed by demonstration that his left hand was two palms away from his body, and in such case, in relation to his position, how could he have possibly been hit by the rearview mirror of the taxi running on the roadway?  The defence only pointed out what Mr Chow said was doubtful.

25. In dealing with this aspect, the magistrate did not consider the existence of the doubt referred to by the defence, and how the problem arisen from the doubt, if it did exist, could be solved.  Instead, he simply commented that the cross-examination by the defence “is not sufficient to convince the court that the prosecution witness had deliberately suggested a shorter distance in court when knowing full well how long one metre was”.

26. By saying so, the magistrate appeared to put the burden on the defence, requiring the defence to “convince” him.  He did not analyze why a professional driver would mix up the distance of one metre and the distance equivalent to two palms.  In the absence of any clarification, the magistrate simply said that he believed Mr Chow could not be precise about the actual distance of one metre and even said that the cross-examination of the defence could not “convince him”.  Even if the magistrate had not put the burden on the defence, his way of expression had given such an impression.  The trial appears to have been unfair to the appellant.

27. In the light of the above reasons, I find the conviction of Charge 1 unsafe and unsatisfactory.  The conviction of careless driving is quashed.

28. Since Charges 2 and 3 were both based on the first charge of careless driving, these two charges cannot stand either.

29. As to the third ground of appeal, since grounds (1) and (2) have been made out and all three convictions have to be quashed, ground (3) is only an academic issue and carries no bearing on whether the appeal should be allowed.

30. I only want to make the following two points.

31. In respect of additional evidence, it is shown in the evidence that at trial counsel for the appellant has agreed with the prosecution to produce the sketch drawn and the photos taken by PC 34556 and the appellant’s cautioned statement recorded by the officer to the court by way of admitted facts.

32. The fact that the appellant did go to the police station on 17 December 2012 to meet the abovementioned police constable, however, was not mentioned whatsoever.

33. In the review, Mr Chan of counsel only submitted there had been omission on the part of the defence at the trial. This was not sufficient.  Neither the appellant nor his counsel had proved by way of affidavit that it was indeed an omission instead of a deliberate choice of the defence counsel not to raise the matter while he was fully aware of it.

34. The appellant in his cautioned statement had also clearly indicated that he had not “made any report himself” because he did not think any accident had happened.  In such case, it was proper for the magistrate not to allow “additional evidence” to be adduced.

35. In addition, the appellant said that he had reported the “incident” at a police station within 24 hours, which the magistrate said was not a report of the “accident”.  In my view, the appellant has failed to show there is sufficient information or evidence in support in the present case. According to the above police officer’s testimony and investigation report, he did at 1045 hours on 17 December 2012 call the taxi registration company to which the appellant related to enquire about the details of the taxi driver.  He called the taxi registration company again at 2:00 pm and was told that the person in charge of the taxi and the driver had not been located.  The appellant went to the police station at 3:20 pm on the same day, saying no accident had happened at the scene, and that someone had hit the rearview mirror of the taxi, and on thinking that the person would “extract money by false accusation”, he thus disregarded him and left.

36. The appellant in his cautioned statement alleged that at a later stage on the day in question, the taxi owner told him that the police were looking for him and hence he went to the police station.

37. In the present case, there is no information or evidence showing that the appellant had made a report “by himself” in person at the nearest police station as soon as reasonably practicable and not later than 24 hours after the accident.

38. According to the information, on the contrary, the appellant did not make the report by himself but went to the police station only after being informed that the police were looking for him.  If the appellant in fact by himself made a report in person at the nearest police station as soon as reasonably practicable and not later than 24 hours after the accident with allegations completely different from what Mr Chow alleged had happened in the accident, would he be considered as having complied with the requirements under the law?  I do not think it is appropriate to draw any conclusion here on a hypothetical case without any factual basis that has now become an academic issue.

Application for costs

39. The appellant has applied for costs of the trial, review and appeal.

40. I have considered all the circumstances related to the present case, and it is my view that the appellant should be granted costs of the trial and the appeal but not those of the review.

41. I have also ordered that the costs to be taxed by a master if not agreed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P.Y. Lo, Barrister-at-law