HKSAR v. WONG HING KI

HCMA263/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.263 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of the offence of being a taxi-driver without reasonable excuse failing to take all reasonable precaution to ensure the safety of a passenger alighting from his taxi, and he was sentenced to two days' imprisonment plus $2,000 fine. He now appeals against the conviction.

2. One of the grounds advanced by his counsel, Mr Raymond Yu, is that the learned Magistrate in dealing with an unrepresented Defendant as the Appellant was at the trial, did not tell the Appellant that he had the right to call defence witnesses after he had finished giving his evidence. Mr Yu also complained that the learned Magistrate failed to advise the Appellant that he had the right to make a final submission to sum up his case to the Magistrate.

3. However, it is right that at the beginning of the trial, before any prosecution evidence was called, the learned Magistrate did explain to the Appellant the procedure to be adopted by her in dealing with the prosecution's evidence and she explained to him that he had the right to put questions to the prosecution witnesses.

4. At the close of the prosecution's case, she again explained to him the procedure that she would adopt in dealing with the trial as from that stage, and she explained to him that he had the right to give evidence which meant taking an oath or affirmation and that if he did not wish to give evidence, no adverse inference would be drawn against him by the Magistrate. She then told him that whether he liked to give evidence or not, he was entitled to call witnesses to testify on his behalf. She then asked the Appellant if he elected to give evidence and the Appellant said that he would wish to give evidence. After that, the learned Magistrate said to him that after he gave his evidence, the prosecutor could cross-examine him in the same way that he had cross-examined the prosecution witnesses. And she also told him that :

"You cannot say 'I stand up here and say a few words'. You are not allowed to do that. You can only do that later on by way of submissions. Now, do you like to give evidence or not to come here and give evidence'."

Defendant was willing.

5. So in that address to the Appellant, the learned Magistrate had also told the Appellant that he would have the right to make submissions to her after the evidence was completed. After the Appellant completed his evidence, she asked him if there was anything else he wished to tell her arising from his earlier answers to the prosecution in cross-examination, and the Appellant then addressed the Magistrate. The transcript of that part of the trial is not available to me because what the Appellant said was in Chinese and that has not been transcribed.

6. She then told the Appellant that he should not mention anything new without obtaining permission from her and that he was not entitled to ask the prosecutor questions. She then asked him if he had anything else that he wanted to supplement or to clarify, and the Appellant again addressed her in Chinese which has not been transcribed. She then said there was no need to repeat what he already told her. The Appellant then again addressed her in Chinese and again there was no transcript of that.

7. Therefore, it appears me that the learned Magistrate had told the Appellant quite clearly that he had the right to call witnesses and the right to make submissions and it appeared that the Appellant did make some submissions, albeit we are not sure what was said to the Magistrate after he had completed his evidence. I, therefore, found there is no substance in this particular ground of appeal.

8. The other ground of appeal advanced by Mr Yu related to the evidence given by the two prosecution witnesses, and Mr Yu's complaint is that the learned Magistrate, even though finding that PW1 had exaggerated her evidence on her injuries, and even though the learned Magistrate has some reservations as to the frequency and the way PW1's left leg was injured, she nevertheless accepted PW1's evidence. She did mention that despite those reservations that she had about the evidence of PW1, PW1 and PW2, who corroborated PW1's evidence, were witnesses that she could rely upon.

9. In my judgment, the parts of PW1's evidence about which the learned Magistrate had some reservations do not go to the heart of PW1's evidence, and the main parts of PW1's evidence were corroborated in the main by PW2.

10. That leads me to Mr Yu's other ground of appeal which is that the learned Magistrate failed to consider the material discrepancies between the evidence of PW1 and PW2. These discrepancies have been enumerated by Mr Yu in his skeleton argument and I do not intend to repeat them here. Suffice it to say that in my judgment, the two prosecution witnesses are consistent in so far as the main parts of their evidence are concerned, and where there are discrepancies, these discrepancies are more apparent than real. I therefore found that this ground of appeal does not succeed either and I am unable to agree with Mr Yu that in view of all these matters, the conviction of the Appellant has been rendered unsafe and unsatisfactory. The appeal against conviction is therefore dismissed.