R. v. LUI KAM MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1532 OF 1996

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J U D G M E N T

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1. The appellant was convicted of careless driving before a Special Magistrate on 21st November 1996, a review was held on 28^th November 1996.

2. The appellant was said to have parked his car illegally in Tuen Hop Street, Tuen Mun and that a policeman stopped to give him a traffic ticket. The prosecution case was that he ordered the appellant to switch off his car engine but the appellant having done so restarted the engine and drove away causing a taxi coming up in the lane behind it to apply its brake sharply and to almost come into collision with the appellant.

3. The appellant raises various factual matters in respect of the evidence, none of which are significant enough to warrant allowing the appeal against conviction. He does, however, alleged that he wish to cross-examine the officer in respect of inconsistencies contained in three statements made by that officer prior to the court hearing.

4. Since he alleged that the Magistrate had refused his questions to cross-examine the witness on those inconsistencies and that was not reflected in the record, I referred the record to the Magistrate for his comments. In his letter to me, which I have made available to the appellant, it is apparent that the Magistrate was under some belief that the prosecution could adduce the written statement of a witness at trial in addition to his oral testimony and the inference is that it is only if the prosecution adduce such a statement, cross-examination upon it could take place. It is also apparent from the transcript that the appellant in chief did refer to the inconsistencies in the three statements of the police witness. They were clearly known to him at the time and obviously, from his evidence, he knew their value in attacking the credit of the prosecution witness.

5. I cannot be sure on the transcript that a full opportunity was given to the appellant to cross-examine that witness in respect of those inconsistencies. I must have a doubt that the conviction is proper and the appeal against conviction is allowed.

6. In addition, the Magistrate sought to fine the appellant $200 in addition to the penalty on conviction for the offence for being late in court. The Magistrate had no power to do so. The fine in respect of the charge of careless driving is set aside as is the fine of $200 purported to be imposed upon the appellant for late arrival.