THE QUEEN v. MAK TAK KWAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1564 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 10th October 1990, the appellant was convicted in the Magistrates Court at Western of an offence of careless driving, failing to comply with the indication given by a red light, and failing to produce a driving license. He was fined $500, $300 and $400respectively.

2. He appeals to this court against both conviction and sentence.

3. The grounds of his appeal are that there was no evidence or no sufficient evidence whereon to found the said conviction. The appellant was underrepresented at the hearing of this appeal and I have allowed him to expand upon these grounds without objection from the Crown.

4. The only ground which he has advanced, which has caused me any concern. Is that the magistrate was biased. It was his contention at the trial that the prosecution witness, whose evidence the magistrate accepted, had framed him.

5. The reason why additional ground has given me cause for concern is that at the conclusion of the trial the magistrate said  :  "I do not believe a police officer would just merely frame up the defendant just because he wanted to go to a place more than one time to pick up passengers." Furthermore in his Statement of Findings he said  :  "I do not believe a police officer would frame up the appellant just because the appellant was going back to pottinger Street again to pick up passengers."

6. This seems to indicate an attitude on the part of the magistrate, that come what may, no matter what evidence was produced, he would not be prepared to accept that a police officer would frame a man in the circumstances set out.

7. Mr Reading for the crown argues that the issue was really one of   fact and that the credibility of the witnesses was of the utmost importance. The Magistrate clearly accepted the evidence of the police officer and rejected that of the appellant. He therefore supports the conviction.

8. It may well be that the Magistrate did hot intend to show that he had a closed mind so far as the issue of framing was concerned. It may be that he did direct himself properly on the matter of credibility of the respective witnesses. However, not without some reluctance, I have decided that I cannot allow the convictions to stand, based as they are upon the evidence of the police officer, who was alleged to have framed the defendant, and whose evidence was accepted by the magistrate partly on the basis of his opinion that he did not believe a police officer would frame up the appellant for the purposes mentioned. Had the Magistrate based his conclusion upon his assessment of the particular police officer in question obviously he could not have been criticised. But to reach his conclusion of guilt on the testimony of this police officer on the basis that no police officer would act in that way, did indicate some bias in favour of the police and against the appellant, whose defence was in these circumstances, a non-starter.

9. For these reasons I allow the appeal and set aside the convictions.