HKSAR v. TSUI PO WAN

HCMA 40/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 40 OF 2017

(ON APPEAL FROM TMSC 16760 OF 2015)

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J U D G M E N T

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Introduction

1.  The appellant faced a summons of careless driving which alleged that the appellant drove a private car bearing the registration number RK 7854 carelessly in Yuen Lung Street, Yuen Long.  The appellant, acting in person, pleaded not guilty to the summons and was convicted after trial in the Tuen Mun Magistrates’ Courts by Deputy Magistrate LT Pang, as he then was, and was fined $2,500.

2.  The appellant appeals against both his conviction and sentence.

The prosecution case

3.  Three prosecution witnesses testified for the prosecution.  Mr Ho (PW1) gave evidence that he was driving his taxi along Yuen Lung Street in the direction of Fung Kwan Street at about 9:15 pm on 23 June 2015.  It was drizzling at the time.  PW1’s taxi was not carrying any passenger and he was driving at a speed of 20 km/h looking for passengers.

4.  The road in question was a two-way carriageway with continuous double lines separating traffic travelling in opposite directions.  There were two lanes for each direction of the traffic.  However, lanes for the traffic travelling in the direction of Fung Kwan Street would merge into one lane somewhere near Yau Tin West Road.

5.  When PW1’s taxi was travelling along Yuen Lung Street in the direction of Fung Kwan Street, there were a number of vehicles parked on the nearside of the road and the first lane was occupied.  PW1 therefore was travelling on the second lane, ie, the lane which would eventually merge with the adjacent nearside lane.

6.  Shortly after PW1’s taxi had gone past lamp post AD 0481, a white private car, driven by the appellant, suddenly came out from the taxi’s nearside and made a right turn.  Seeing that, PW1 applied the brake and swerved his taxi to the right.  However, he could not avoid the private car and his taxi was hit by it.

7.  PW1 said the private car was making a U-turn.

8.  PW2 and PW3 were police officers.  They gave evidence about the sketches and the geography of the scene.

The defence Case

9.  The appellant elected to give evidence.  He said as a result of the accident, he suffered head injuries which eventually led to memory loss as a result of which he could not tell exactly what happened at the time of the accident.

10.  Despite his memory loss, the appellant managed to remember the following facts that just happened seconds before the collision:

(1) the appellant was driving on the offside lane as the nearside lane was occupied by illegally parked vehicles;

(2) he was minded to enter the car park on the opposite side of Yuen Lung Street before the collision; and

(3) he had switched on the head lamps and rear lamps of his car.

11.  The appellant was rendered unconscious for a while after the accident.  He still felt unwell the day or days following the accident and had been to hospital for treatment.

The issues

12.  The magistrate identified the following issues are in dispute:

(1) the exact location of the collision;

(2) the exact location of the car park on the opposite side of Yuen Lung Street; and

(3) PW1’s observation on the appellant’s private car, including PW1’s evidence that the appellant was making a right turn or U-turn.

The magistrate’s findings

13.  The magistrate found PW1, PW2 and PW3 to be honest and credible.

14.  The magistrate rejected the appellant’s evidence for the reasons given in paragraphs 54 ‑ 59 of his Statement of Findings.

15.  The magistrate found that PW1 made the correct markings when he was asked to mark the positions of the two vehicles on the sketches, P4 and P5.  The magistrate found that the “X” sign, used by PW1 to indicate the car park entrance was misplaced by him but that minor mistake did not affect the truthfulness of PW1’s evidence.

16.  The magistrate found as a fact that the appellant had gone past the car park entrance immediately before the collision.  Either the appellant was making a U-turn for the purpose of driving on the opposite lane, or, he had, for some reason, missed the car park entrance and was in the course of entering the car park by making a U-turn.  The magistrate found whichever one was the reason underlying the appellant’s manoeuvre, making a U-turn against the continuous double white lines was illegal, and when considered alongside with PW1’s account as to the appellant’s sudden manoeuvre, the magistrate found that the appellant did not exercise due care and attention.

17.  The magistrate found the appellant of careless driving.

Grounds of appeal against conviction

18.  The appellant, in his home made grounds of appeal against conviction, argues that:

(1) The prosecution failed to prove the charge beyond all reasonable doubt.  On the evidence adduced by the prosecution, the inference the appellant was driving carelessly is not the only reasonable inference that can be drawn.

(2) The magistrate ignored that the appellant’s case that PW1 could be driving at a high speed and tried to overtake the appellant may be true.

(3) The magistrate failed to take into consideration the self-contradictions and weaknesses in PW1 and 3’s evidence:

(a) PW1 could not identify the appellant in court;

(b) PW1 first said the appellant was driving at 5 km/h, then he changed his evidence and said the appellant’s vehicle was “parked”; and

(c) PW1 only mentioned for the first time that the appellant made a U-turn when he gave evidence in court.

(4) The magistrate erred to believe the evidence of PW1, PW1 was not an independent witness, he had a self‑interest and was at risk of lying. The evidence of PW1 was unreasonable and self-contradictory in many respects, the appellant complains that:

(a) PW1 failed to identify properly the locations;

(b) PW1 was able to refer to a lamppost by its number despite his claim that he was not helped by anyone in making his statement to the police;

(c) the magistrate ignored the clear record of the appellant and ignored the driving records of PW1; and

(d) the contradictory evidence of PW1 on various issues.

(5) The fact as found by the magistrate that the appellant drove his car carelessly is not the only possibility that could have happened.  The magistrate erred to not to allow the appellant to adduce evidence on the weights of the vehicles involved, the calculation of momentum, friction between the tires and the road and sketches to be produced by the appellant.

(6) The police investigation work was full of mistakes and they were ignored by the magistrate.

(7) The magistrate erred to reject the evidence of the appellant that he suffered serious injury leading to memory loss as a result of the collision.

The respondent’s submissions

19.  In respect of the complaint that the magistrate erred in accepting PW1 as a credible and reliable witness and disbelieving the appellant, the respondent submits that appeals from the magistrates’ courts are dealt with by way of rehearing, based on the evidence that had been adduced before the magistrate.  Where facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.

20.  The respondent submits that the crux of the present case depends on the credibility and reliability of PW1 and the appellant.  The magistrate was in the best position to assess the credibility and reliability of the witnesses and to make findings on the evidence he accepted.

21.  The respondent submits there is no unreasonableness or inherent improbability in PW1’s evidence that he was travelling at 20 km/h on a road at the time when it was drizzling and he was looking for passengers, a matter which the appellant took issue with.  The respondent submits that the magistrate was right to accept the evidence of PW1 on the issue of the speed of the taxi.

22.  For the complaint that PW1 could not identify the appellant during the trial.  The respondent submits that identification was not an issue at trial.  Photographs taken by the appellant after the accident were produced as exhibits and the appellant gave evidence on what, according to his recollection, when he was driving at the material time.

23.  The respondent submits there is nothing contradictory in the witness statement of PW1 that the appellant’s vehicle parked in the first lane before it made a right turn at a speed of around 5 km/h.  The respondent submits although PW1 did not say in the witness statement the appellant was try to make a “U-turn, the account given by PW1 in his witness statement is not contradictory to his evidence in court.

24.  The respondent submits that the magistrate has considered the photographs submitted by PW1 (exhibit P2) and those produced by the appellant (exhibit D1).  The magistrate relied on P2.  P2 photos 1 to 3 depicted the location of the two vehicles after the incident.

25.  The appellant challenged PW1’s markings on exhibits P3 and P4 were inaccurate.  The respondent submits that the magistrate has dealt with the challenge in paragraphs 30 to 39 of the Statement of Findings.  The magistrate correctly found that PW1’s markings in relation to the locations of the positions of the vehicles on P3 and P4 were correct but he had misplaced “X” on P3 as the location of the car park entrance.

26.  The respondent submits there is nothing unreasonable or inherently improbable in the fact that PW1 referred to the location of the offence by the lamppost number.

27.  For the complaint that the magistrate erred to reject the evidence of the appellant that he suffered serious injury leading to memory loss as a result of the collision.  The respondent submits the magistrate has dealt with the issue in paragraphs 57 ‑ 59 of the Statement of Findings.  The magistrate says:

“57. Secondly, the defendant said he lost consciousness and memory following the collision.

58. Certainly I cannot refute the defendant’s saying that he had been to the hospital on a day after the collision. However, I believe matters of significance and important are these: the absence of evidence that he had bumped or hurt his head, or sustained injuries of any kind to his head in the collision; and further the absence of evidence that he had lost his consciousness. Never was his case that he was lying unconscious at the driver seat immediately after the collision.

59. Furthermore, it is hardly believable that a collision occurring in such manner and of such magnitude could render an adult unconscious which eventually led to memory loss. It is worthy of note that the male depicted to be standing in exhibit P2 (photo #3) was the defendant. That photo was taken immediately after the collision.”

28.  The respondent submits that the magistrate was correct in his analysis and there is no error in the magistrate’s findings.

29.  In respect of the complaint that the magistrate erred in refusing the appellant submit further evidence during the trial, the respondent submits that the magistrate was correct in disallowing the production of documents on “what could have happened”, including “statistics, such as the weight of both vehicles, the calculation of momentum, friction between the tire and the road etc.”  The respondent submits that the appellant was not qualified to give expert evidence in the trial.  The magistrate was concerned with “what happened” but not “what could have happened”.

30.  For the complaint that the magistrate disallowed the appellant’s application to submit doctor certificate to support the appellant’s head injury which resulted in memory impairment.  The respondent submits that the magistrate was right not to accept the medical certificate that the appellant sought to produce as the document was hearsay evidence.  The respondent submits that the issue whether the appellant was injured as a result of the accident was irrelevant for the purpose of the trial.

31.  For the complaint made against the police, the respondent submits that there is no irregularities or unfairness with respect to the time that the time of investigation conducted by the people after the incident and the complaint raised by the appellant has no bearing on the whether the conviction was unsafe and/or unsatisfactory.

32.  For the complaint that the magistrate erred to convict the appellant as the inference that the appellant was driving carelessly is not the only reasonable inference that can be drawn, the respondent submits that the magistrate has dealt with this issue under paragraphs 60 ‑ 69 of the Statement of Findings.  The respondent submits that the magistrate was perfectly entitled to make his findings of fact and credibility on witnesses after considering the evidence.

33.  The respondent submits that on the evidence of PW1, which the magistrate correctly accepted, the sketches and photographs, the only irresistible inference that could be drawn is that the appellant was in the course of making a U-turn against the double white lines at the material time and he failed to exercise due care and attention.

34.  Mr Daryanani draws my attention to the fact that the appellant has a clear criminal record and six fixed penalty records.

35.  The magistrate was not told of the clear record of the appellant until after he convicted the appellant.  The magistrate was then told of the fixed penalty records at the sentencing stage.

36.  The respondent accepts that since the fixed penalties of the appellant were all paid, they are not treated as prosecution or conviction records (Section 3(8) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap 240).

37.  The respondent accepts that as the appellant has no criminal record and all the traffic records are fixed penalties which are not considered as convictions, the appellant should have been treated as a person of clear criminal record.  The magistrate should have directed himself as to the (1) credibility; and (2) propensity when he assessed the evidence of the appellant.  It is unfortunate that both the appellant, who was unrepresented at the time of his trial, and the counsel on fiat, did not inform the magistrate the fact that the appellant has a clear record.

38.  Mr Daryanani draws my attention to the case HKSAR v Wong Wai Yat (HCMA 598/2010, 22 October 2010, per Mackintosh J).  The appellant of that appeal had no conviction record.  However, he had three fixed penalty records. As the appellant did not give evidence, the magistrate gave himself a “Berrada” direction that the appellant was less likely to have committed the offence.  On appeal Hon Mackintosh J said:

“Record

25. I have raised some concern with the counsel today, about the admitted facts in this case: that the defendant had a ‘clear driving record’. There was some emphasis in submissions in relation to that ‘clear driving record’. The Magistrate in deciding the case, considered that it was appropriate to give himself what he called a ‘Berrada’ direction which, since the appellant had not given evidence, meant a direction that the appellant was, less likely to have committed the offence.

26. In fact, the appellant ad no conviction record. However, he had a record for three fixed penalty offences of speeding and using a mobile telephone in a moving vehicle. But because they were fixed penalty cases, the offences did not result in convictions. Fixed penalty notices are issued when a police officer has reasonable grounds to suspect an offence has been committed, and if the fixed penalty is paid, the offender is not liable to prosecution or conviction.

27. Nevertheless to put forward a person with such a record of fixed penalty notices as a person who has a ‘clear driving record’ is, in my judgment, wrong and it could be misleading.  If it is appropriate to say anything about a person’s record in such circumstances, that it should be made clear that in effect, the defendant has no conviction record for driving offences.”

39.  I agree with Mr Daryanani that Mackintosh J did not appear to say the magistrate was wrong to give himself a “Berrada” direction on propensity.  He was concerned with the proper description of the record of the appellant.

40.  In my judgment, there is a material irregularity in the trial of the appellant in that the magistrate did not give himself the relevant direction as to (1) propensity; and (2) credibility.  The case hinges on the assessment of credibility and reliability of the evidence of PW1 and that of the appellant.  The non-direction on (1) propensity; and (2) credibility renders the conviction of the appellant unsafe and unsatisfactory. On this reason alone the appeal should be allowed and the conviction quashed.

41.  Mr Daryanani submits that given the strength of the evidence, the appellant must have crashed into PW1’s taxi while making a U-turn and given the actual damage to PW1’s taxi, it is in the interest of justice that I should order a re-trial.

42.  The appellant objects to a re-trial, he submits it is unfair to put him on trial again given that the injury that he sustained had resulted in his memory loss.  He informs me that his father is suffering from terminal illness and he is under tremendous pressure.

43.  The appellant argues the matters raised in his home made grounds.  He also seeks to submit some medical certificates to prove that he was admitted to a hospital after the collision.  The appellant says he had produced the medical certificates at his trial but for reasons unknown the medical certificates do not appear in the list of exhibits list.  The medical certificates that the appellant seeks to produced are not in the list of exhibits.  I do not accept the appellant’s claim that he had produced them as exhibits at his trial.  The appellant gave evidence that he had been admitted to a hospital for treatment the day or days after following the accident.  The magistrate in paragraph 58 of the Statement of Findings says:

“Certainly I cannot refute the defendant’s saying that he had been to the hospital on a day after the collision.”

44.  In other words, it is not the case that the magistrate did not reject the appellant’s evidence that he had been to the hospital after the accident, what the magistrate did not accept is the appellant’s evidence that the collision rendered the appellant unconscious which eventually led to memory loss.  The appellant says he had produced the medical certificate but the List of Exhibits shows the contrary.  It is not clear from the Statement of Findings whether the appellant had sought to produce the medical certificate at his trial and the magistrate refused to admit the same into evidence.  If the appellant wanted to prove the contents of the medical certificate at his trial, he should call the maker of the certificate, ie, the doctor who examined him, unless the prosecution was prepared to agree to the production of the medical certificate.  It is obvious from the Statement of Findings that the maker of the medical certificate was not called as a witness.  The medical certificate that the appellant now seeks to produce was therefore hearsay evidence at the time of the trial and hence was inadmissible evidence then and it remains inadmissible evidence at the time of the appeal.

45.  The appellant cannot explain why the maker of the medical certificate was not called as a witness to give evidence and produce the medical certificate at the trial.

46.  I refused to admit the medical certificate as fresh evidence on appeal.

47.  The appellant draws my attention to three cases:

(1) HKSAR v Chang Louise Su Lin [2017] 1 HKLRD 415, per Barnes J;

(2) HKSAR v Chan Kin Shing [2015] 2 HKLRD 547, per Barnes J; and

(3) HKSAR v Tong Wai Ching HCMA 75/2002, 15 May 2002, per Toh DHCJ(as she then was).

48.  In Chang Louise Su Lin, the appellant’s appeal against conviction was allowed because the appeal court found that the magistrate was wrong in refusing the explanation given by the appellant.  I do not think the case Chang Louise Su Lin helps the appellant, each case turns on its own facts, the fact that the magistrate was wrong in refusing the explanation given by the appellant in that case does not mean that the magistrate in the present case also erred to do so.

49.  In Chan Kin Shing, the appellant’s appeal against conviction was allowed mainly because the appeal court found that the magistrate failed to resolve some unsatisfactory aspects of the key prosecution witness and the magistrate.  The magistrate in Chan Kin Shing, by saying that the cross-examination of the defence could not convince him, had given an impression that a burden was placed on the defence.  I do not think the case Chan Kin Shing helps the appellant, the fact that the magistrate in Chan Kin Shing failed to resolve some unsatisfactory aspects of the key prosecution witness does not mean the same mistake was made by the magistrate in the present case.  In the present case, it does not appear from the Statement of Findings that the magistrate had reversed the burden of proof.

50.  In Tong Wai Ching, the appeal was allowed because the appeal court found that:

(1) the magistrate was in error when she concluded that the four prosecution witnesses corroborated each other when there was no such corroboration;

(2) the magistrate failed to resolve the discrepancies of the witnesses;

(3) the magistrate appeared to have descended into the arena with her many interventions; and

(4) the magistrate had failed when assessing the evidence to remind herself that the appellant had a clear record.

51.  In the present case, the trial of the appellant did not involve the use of corroboration evidence.  Each case depends on its own facts, the fact that the magistrate in Tong Wai Ching failed to resolve the discrepancies of the witnesses does not mean the same mistake was made by the magistrate in the present case.

52.  There is no complaint that the magistrate had descended into the arena in the present case.  In the present case, the magistrate did not direct himself about the effect of the clear record of the appellant on (i) propensity; and (ii) credibility because he was not told by the appellant and the prosecution that the appellant has a clear record.  It is unfortunate that after the magistrate became aware of the clear record of the appellant, he did not review his decision to convict and consider the effect of the clear record of the appellant.  The respondent accepts that the fact that, in the present case, the magistrate did not address the effect of the appellant’s clear record on (i) propensity; and (ii) credibility in assessing the appellant’s evidence amounts to a material irregularity.

53.  On the issue whether I should order a re-trial, I have considered the grounds of appeal put forward by the appellant, his oral submissions and the respondent’s submissions.  I agree with Mr Daryanani that it is in the interest of justice that I should order a re-trial.

54.  That being the case, I should not express my views on the grounds raised by the appellant and the respondent’s submissions in reply.

55.  For the reasons given, I allowed the appeal, quashed the conviction and I ordered a re-trial.  I also ordered that any fine that the appellant had paid should be returned to him.