HKSAR v. FENG GUANG LING

[English Translation – 英譯本]
HCMA 847/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 847 OF 2011

(ON APPEAL FROM KCV NO. 72 OF 2011)

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REASONS FOR JUDGMENT

1.  The appellant was charged that at 7.39 p.m. on 12 December 2010, at the junction of Tak Shing Street and Tak Hing Street, being the driver of a taxi displaying registration number EX7205 on a road, did, without reasonable excuse, fail to comply with the requirement indicated by a NO ENTRY traffic sign of the type shown in Figure No. 112 of the Road Traffic (Traffic Control) Regulations of Cap. 374, Laws of Hong Kong.

2.  The appellant pleaded not guilty and the case was tried before a Deputy Special Magistrate on 31 August and 21 September 2011.  When the prosecution closed their case, the appellant complained that the trial was unfair and asked for a change of the magistrate.  The court granted the appellant’s application for a trial de novo and a fresh trial was fixed to be held at 10 November 2011.

3.  On 10 and 16 November 2011, the case was heard in the Eastern Magistracy before another Deputy Special Magistrate (hereinafter referred to as “the Magistrate”).  The appellant still pleaded not guilty but was convicted after trial and fined $1,400.  He appealed against his conviction and sentence.

4.  The appeal hearing was originally held before a Deputy Judge on 9 February 2012. However, since the appellant’s grounds of appeal concerned the question of whether the way in which the Magistrate handled the case was improper, the court adjourned the hearing for obtaining the transcript of the trial.  On the same day, the appellant applied for abandoning his appeal against sentence.

5.  The appeal was heard before me on 24 May 2012.  After hearing, I allowed the appeal, quashed the conviction and set aside the sentence.  After assessment, I awarded the appellant $800, being his costs of the appeal.  My reasons for allowing the appeal are set out below.

Summary of the prosecution case

6.  The prosecution case was quite simple.  The main prosecution witness was a real estate agent Mr. Ho.  His evidence was that on the day of the offence, when he was working in Shop B2 at No. 1 Tak Shing Street, he heard noises coming from a motor vehicle on Tak Shing Street outside his shop.  He walked out of the shop and saw the appellant’s taxi moving eastwards along Tak Shing Street.  Mr. Ho noticed that on that stretch of the road vehicles were allowed to move westwards only and that at the junction of Tak Shing Street and Tak Hing Street two NO ENTRY signs were erected.  Mr. Ho saw the rear and the registration number of the appellant’s taxi.  He went back into the shop and jotted down the registration number of the taxi (EX7205) in a notebook specially used for recording activities concerning vehicles going along Tak Shing Street in a direction not allowed by the traffic regulations.  Later, he reported this matter to the police.

Defence case

7.  The appellant did not deny that he was the driver of taxi EX7205 at the material time.  He also admitted that he did drive the taxi to Tak Shing Street on the day in question.  His evidence was that when he got into Tak Shing Street he drove in the section of Tak Shing Street where two-way traffic was allowed.  When he was near parking meter 4133B, he slowed down and U turned.  At that moment, a motor vehicle drove past him quickly.  He believed that that vehicle was the offending vehicle referred to by Mr. Ho.  He maintained that he did not violate any regulation about driving.

Findings made by the Magistrate

8.  The Magistrate found that Mr. Ho was an honest and reliable witness but he considered the appellant to be not an honest witness.  He commented that the appellant was evasive and that he refused to answer important questions directly.  He said the appellant on the one hand stressed that he remembered clearly what happened, but on the other hand he was unable to provide even simple information about the vehicle which he alleged to have been driven past him on his right.

9.  The Magistrate accepted Mr. Ho’s evidence and found the appellant guilty.

Grounds of appeal

10.  The appellant’s grounds of appeal can be summarized as follows:

(1) The Magistrate erred in regarding Mr. Ho as an honest and reliable witness;

(2) The Magistrate erred in rejecting the appellant’s evidence; and

(3) The Magistrate assessed the prosecution case and the defence case according to different standards, rendering the trial unfair to the appellant.

11.  One of the appellant’s complaints is that the Magistrate erred in accepting Mr. Ho’s evidence.  He pointed out that at the trial he had drawn the Magistrate’s attention to the fact that there were discrepancies between Mr. Ho’s evidence and what Mr. Ho said in the witness box on a previous occasion, but the Magistrate told the appellant that he did not know what happened that day, and he rejected the appellant’s allegation.

12.  When the Deputy Judge adjourned the case on 9 February 2012 for obtaining the transcript, he asked the respondent to clarify the following areas:

“(1) How did the trial magistrate deal with the appellant’s allegation that there were discrepancies in PW1’s evidence given at the trial de novo?

 (2) How did the trial magistrate explain to the appellant the procedures of the trial?”

13.  As a result of the Deputy Judge’s instruction, the respondent stated in their written submission that:

“Concerning point (1), the content of the relevant part of the transcript of the trial can be found on page 88 D-S of the appeal bundle. In this part of the transcript, the appellant was cross-examining PW1. As PW1 said that only when he heard some noises coming from a motor vehicle did he turn his attention to what was going on outside the shop (page 87U to page 88C), the appellant asked him why he did not mention this point at the hearing on 30 August. Thereupon, the magistrate sought clarification from the prosecution and learned that the trial of this case was a trial de novo. He then told the appellant that the previous trial had been discontinued, and that he therefore would not consider the evidence given previously before another magistrate. Subsequently, at the time of making the closing submission, the appellant again mentioned what happened during the hearing on 30 August and accused PW1 of giving false evidence under oath. The magistrate responded by saying that the discontinued hearing had no relevance and that if the appellant wanted to accuse anyone of perjury, he should seek legal advice from a lawyer (page 122 I-R of the appeal bundle).”

My considerations

14.  A magistracy appeal is conducted by way of rehearing on the evidence before the trial magistrate supplemented by any fresh evidence which the appellate court may admit: HKSAR v Chou Shih Bin[1].  I consider that as far as the facts are concerned, the appellate court should recognize that the trial magistrate enjoyed the advantage of having received the evidence at first-hand.  The appellate court is not entitled to determine, by relying on the transcript, whether a witness is credible and reliable: HKSAR v Raymond Chen[2]. Whether a witness is credible and reliable is purely a matter for the trial magistrate to decide.  However, the conviction will be unsafe if the finding of fact made by the trial magistrate is unreasonable, illogical or inherently improbable, or if the trial magistrate, in dealing with the evidence, omitted, wrongly described, failed to consider or analyse material matters.

15.  It is true that Mr. Ho’s evidence was what he said in the witness box under oath at the trial de novo. What he said before another magistrate at an earlier time was not the evidence of this case.  However, it appears that the Magistrate overlooked the actual intention of the appellant, which was to complain that Mr. Ho had made a previous inconsistent statement.  The appellant’s purpose was to point out to the Magistrate that Mr. Ho provided different versions of events at different times, and that therefore Mr. Ho’s evidence should not be accepted.

16.  The appellant was entitled to put to Mr. Ho that he (Mr. Ho) had made an inconsistent statement on a previous occasion.  If Mr. Ho admitted that his previous statement was indeed different from what he said before the Magistrate, the Magistrate did not need to rule on whether there was any inconsistency.  He just needed to consider whether the inconsistency was material, why there was such an inconsistency and whether Mr. Ho’s credibility and reliability was thereby affected.

17.  If Mr. Ho did not admit there was any inconsistency, the appellant could consider cross-examining him on the transcript or audio recording of the previous trial.  If Mr. Ho still denied, the court would then need to make a finding as to whether Mr. Ho did make any inconsistent statement.  If the answer was affirmative, the court should then go on to consider why there was such an inconsistency, whether it was material and whether it had any impact on Mr. Ho’s evidence.

18.  The approach taken by the Magistrate was such that the appellant was deprived of the opportunity to put to Mr. Ho that his evidence was inconsistent with what he said earlier so as to show that his evidence was not credible and/or not reliable.  For this reason, the Magistrate had no opportunity to assess whether Mr. Ho’s evidence was undermined by the fact that he had made a previous inconsistent statement.  The Magistrate’s approach was erroneous.

19.  This appeal is by way of rehearing; however, whether the evidence of such a material witness as Mr. Ho was credible or reliable was purely a matter for the Magistrate to decide.  I do not enjoy the advantage of having received the evidence at first-hand.  I cannot rely on the transcript to decide whether Mr. Ho had given different versions of his evidence on different occasions and whether the discrepancies were serious so as to assess whether the conviction is safe.

20.  Because of the erroneous approach taken by the Magistrate, the trial was unfair to the appellant and the conviction is therefore unsafe.  This ground of appeal alone is sufficient for my finding that the conviction is unsafe, so it is not necessary for me to consider the appellant’s other grounds of appeal.

Application for retrial

21.  I took into account the fact that this was a case of disobeying traffic sign, that no person was injured in this incident and the facts were not serious.  Looking at the history of this case, if I allowed a retrial, this case wouldhave to be tried a third time.  Although the facts of this case were not complicated, it happened in December 2010.  The prosecution and the defence each held fast to their own version of events and the reason for allowing the appeal was that the Magistrate did not allow the appellant to cross-examine a material witness in respect of him having made a previous inconsistent statement.  I also had regard to the resources which would have to be involved if a retrial was ordered.  Having considered all the above factors, I held that a retrial should not be ordered.

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