THE QUEEN v. KWONG KAM PUI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1425 OF 1989

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BETWEEN

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JUDGMENT

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1. The appellant was convicted by Mr Gill on charges of driving without front and rear lamps; obstructing a police officer in the execution of his duty and failing to give his name and address immediately after the commission of an offence. He now appeals against these convictions.

2. The brief facts were that PC16731 was on motor cycle patrol duty when he saw that a motor scooter driven by the appellant, with the appellant's wife as a pillion passenger, was not showing a head light. He signalled the appellant to stop which he did. As the police officer got off his motor cycle, he saw the head light on the scooter come on. He went to the appellant and told him his head light had not been working. The police officer wrote out a fixed penalty ticket and asked for the appellant's assistance in reading the registration disc. The appellant refused, and an arguement developed which resulted in the appellant being charged with the two further offences.

3. The police officer agreed that he had, prior to stopping the appellant, noticed that the rear light on the motor scooter was working. After stopping the appellant he checked the light control switch and found that the rear light could be activated without switching on the head light. In his evidence the appellant denied that the switch worked in this way. He claimed that the rear light could not be switched on independently of the head light. The magistrate had the motor cycle, which had been kept in police custody, brought into court and a demonstration took place. This showed that when the control switch was in one position the rear light lit up but the head light did not.

4. In his statement of findings the magistrate had this to say :-

"During the course of the evidence it became apparant to me that the issue amounted to one of credibility with PW1 and the appellant providing contrary versions of what took place. I invited counsel to consider bringing the skooter into court to determine whether or not the lights could be operated independently. PW1 having said they could, the appellant said they could not. Both parties agreeing to this course the skooter was brought into court and so that the lights could function the appellant started the motor. PWl demonstrated how he tested the lights and it was apparent that the rear light could be switched on independently of the headlight."

5. He then went on to reject the evidence of the appellant as being untrue. As the above passage shows, he placed considerable importance on the result of the demonstration in assessing credibility. This was understandable as it seemed from this piece of evidence that the appellant was a liar.

6. At the hearing before me the defence applied for leave to adduce two reports on the function of the light control switch on the scooter. The Crown did not oppose this application. One report was from the Government Motor vehicle Inspection Unit and another from an independent mechanic. Both reports showed conclusively that the rear light on the scooter cannot be operated independently of the head light. Within the head light there are two bulbs, one large and one small. In one position the switch activates the rear light and both bulbs, in another it activates the rear light and the small bulb. The independent mechanic's report shows that the plastic holder case to the small light bulb was broken and that the bulb did not light up when tested. It is the mechanic's view that malfunction of the small bulb could have resulted from vibration as the scooter was driven along the road.

7. What comes from the reports is first that the appellant was correct when he said in evidence that the rear light could not be turned on independently of the head light and secondly that when the demonstration took place the small bulb was not working thereby giving the impression to all concerned that in one position the control switch activated the rear light but not the head light. It seems that nobody at the time of the demonstration gave consideration to the possibility that the small bulb was not working. I am told by counsel and I accept that at the time of the demonstration the appellant was taken aback to seethe light functioning in a way which he had not considered possible.

8. Through nobody's fault the magistrate was misled into making a ruling on credibility which was based principally on what is now shown to be an incorrect piece of evidence. On the facts, as now revealed, the head light must have been switched on but because of the defect, it was not working efficiently. There is the very real possibility that the appellant genuinely believed at the time of the incident that his head light was on and working. It should be mentioned that the incident took place in a well lit city area. The big bulb in the head light was working and it is inconceivable in my view that the appellant would not have switched that bulb on if he had been aware that the small bulb was not working.

9. No criticism can be directed at the magistrate for reaching the decision that he did on the evidence before him. However, if he had been aware of the true position he may have come to a different conclusion as to the credibility of the appellant. In the circumstances, I feel the interest of justice can best be served by allowing the appeals against the conviction on the three charges.