HONG KONG MASS TRANSIT RAILWAY CORPORATION v. WOO TAK YAN

[English Translation – 英譯本]
HCMA 343/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 343 OF 2014

(ON APPEAL FROM KTS 23193/2010)

_____________________

_____________________

_____________________

Reasons for Judgment

_____________________

1. The appellant was charged with “entry and travel without ticket”, contrary to By-laws 14(a) and 43 and Schedule of the Mass Transit Railway By-laws made under the Mass Transit Railway Ordinance, Cap.556. The Appellant pleaded not guilty and was convicted after trial by Deputy Magistrate HUNG Ho Kei Andrew (“the Magistrate”) in Kwun Tong Magistrates’ Court. The Appellant was fined $1,500. He applied to the Magistrate to review his decision in the matter and the Magistrate maintained his decision after the review. Aggrieved by the decision, the Appellant appealed against his conviction.

2. I allow the appeal after a hearing and quashed the conviction and the fine. I also award     cost to the Appellant for the appeal hearing. After discussion, the parties agreed that the cost of the appeal was $15,392.30. The reasons for allowing the appeal are as follows.

The Prosecution Case

3. The particulars of offence alleged that on 2 June 2010, the Appellant:

“…without lawful authority or reasonable excuse, did enter the paid area of the railway premises at MTR Wong Tai Station without first paying fare and obtaining a valid ticket appropriate to the circumstances of the intended journey and using that ticket by inserting it into an automatic gate or by using it in an appropriate manner over the electronic sensor of an automatic gate as may be required by the conditions of issue of such ticket on entering the paid area.”

The Prosecution Case

4. Simply put, the Prosecution case is that a ticket inspector of MTR (PW1) was on duty in Wong Tai Sin MTR Station at around 12:55 pm. PW1 witnessed that the Appellant entered the paid area from the unpaid area by forcing open the bars of the automatic gate with the side of his body, without swiping any octopus card or inserting any ticket. PW1 and her colleague went up to intercept the Appellant and demanded him to produce his ticket for inspection. The Appellant produced an adult one-way ticket. PW1 inspected the ticket with her handheld ticket-inspection machine and found out that the ticket was purchased at around 12:55 pm on that day with a face value of $4. However the ticket showed no entry record and subsequently a summons was issued against the Appellant. 

The Defence Case

5. The Appellant said that after he purchased a $4 one-way ticket that day, he inserted it into the slot of the automatic gate. The ticket popped out from the top of the gate and he left after collecting it. Then he was intercepted by a man, and PW1 also arrived to demand him to produce his ticket for her inspection. The Appellant did what he was told. After ticket inspection, PW1 alleged that the ticket was invalid. The Appellant told PW1 that he just passed through the gate with the ticket. PW1 demanded the Appellant to see her supervisor in the Control Room. Inside the Control Room, a man who was believed to be her supervisor said that the Appellant would be charged with “forcing open the gate”. The Appellant argued why he was charged with “forcing open the gate”? Why not conduct a thorough check of the information of the ticket? The Appellant requested that the ticket be checked by a ticket-inspection machine with a base station, but his request was not acceded to. The Appellant denied that he had “forced open the gate” as alleged by PW1.

The Magistrate’s Findings

6. The Statement of Findings by the Magistrate is as long as 35 pages with 73 paragraphs. But only the first 50 paragraphs relate to the conviction while the remaining paragraphs concern the Review Application. The Magistrate found that “the crux of the case was that PW1 eye-witnessed [the Appellant] forcing open the gate and that she eye-witnessed [the Appellant] not doing any act to swipe a card or insert [a ticket]” (see paragraph 11 of the Statement of Findings). The Magistrate also found that whether the ticket-inspection machine had any error was insignificant, and that even if the Appellant had held a ticket with entry record, the Prosecution could nonetheless succeed with the prosecution based on what PW1 had eye-witnessed (paragraphs 13 and 14 of the Statement of Findings).

7. The Appellant produced three documents, namely a Ticket Code/Octopus Reading Report completed by PW1 (Defence Exhibit D1), Prosecution Report (Defence Exhibit D2) and Bylaws Infringement Report (Defence Exhibit D3) which seems to have been completed by Mr. Wong, the supervisor. The Magistrate considered that PW1 had no need to lie in respect of those non-core evidence or exhibits (see paragraph 21 of the Statement of Findings). 

8. The Magistrate accepted PW1’s evidence.

9. On the contrary, the Magistrate considered that the evidence of the Appellant was self-contradictory and averse to common sense. He rejected the Appellant’s evidence.

Grounds of Appeal

10. The Appellant, who was unrepresented, basically put forth four grounds of appeal:

(1)   The Magistrate was wrong to accept PW1’s evidence;

(2)   The Magistrate was wrong not to attach any weight to the evidence given by the Appellant;

(3)   The Magistrate was not fair and just, having made subjective criticism of the Appellant’s attitude and seriously undermining the fairness of the trial; and

(4)   The Magistrate was not impartial and disbelieved the Appellant without having first refuted the defence’s evidence.

Deliberation by this Court

11. Magistracy appeals are dealt with by way of “rehearing” on the evidence and testimony before the trial Magistrate (including any fresh evidence admitted with leave by the appellate court): see the case of Chou Shih Bin v HKSAR[1]. I consider that where the facts are concerned, the appellate court must recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed, and the appellate court cannot determine the credibility or reliability of a witness based on the transcript: see the case of Raymond Chen v HKSAR[2]. Whether a witness is credible and reliable or not is a matter for the trial magistrate to decide. But if the findings of facts made by the trial magistrate are unreasonable, illogical or inherently improbable; or if the trial magistrate has made erroneous quotations, omissions or failed to take into account or analyse important matters, the conviction will be unsafe. 

12. Having perused the trial transcript runs to 158 pages in length, I consider that there are matters that cause concern and disturbance.

13. This case is a typical case of “one-against-one” trial. PW1 and the Appellant each held onto her/his own version: PW1 alleged that the Appellant “forced open the gate” whereas the Appellant asserted that he inserted the ticket into the slot of the machine to pass through the gate.

14. The undisputed fact was that PW1 had filled in reports in relation to this incident (Defence Exhibits D1 and D2). The Appellant sought to cross-examine PW1 in respect of the reports in order to show that the testimony by PW1 in court was incredible. For example, PW1 alleged that the Appellant never said to her that the handheld ticket inspection machine was faulty and therefore he demanded her to use another machine for inspection, but in her report (Defence Exhibit D2), PW1 filled in the “Passenger’s Explanation” that “Your inspection machine is out of order. Use another one to check again” (underline added by this Court). Another example was that PW1 did not write in the Ticket Code/Octopus Reading Report (Defence Exhibit D1) that the remaining value in the ticket was $4 (Because according to PW1’s testimony, the $4-ticket had no entry record so the remaining value should be $4 and not “NA” (Not Applicable)). One more example was that in the Prosecution Report (Defence Exhibit D2), PW1 filled in “III 14A” as “By-laws contravened”. She said on one hand that she filled in this part in accordance with her supervisor’s instructions, but on the other hand she did not write down information such as the particulars of contravention as per her supervisor’s instructions.

15. At the trial, the Prosecutor who acted for the Prosecution objected to the said cross-examination on the ground that the reports were irrelevant to the case. The Prosecutor further argued that the Prosecution did not rely on the reports and therefore the Magistrate should not allow the Appellant to raise those “irrelevant questions” (Page 182C and U-V of the Appeal Bundle).

16. I am of the view that though the Appellant did conduct cross-examination on PW1 in respect of the reports, the Magistrate failed to grasp the crux of the Appellant’s cross-examination on PW1.

17. The Defence’s case was that the Appellant did pass through the gate with the ticket but the handheld ticket-inspection machine was faulty and could not indicate that the ticket had been used. He argued strongly for what was right but his efforts were in vain. If relying merely on PW1’s evidence-in-chief, there was no mention of the Appellant suggesting that the handheld ticket-inspection machine was faulty and requesting another inspection.  It is to be noted that the Appellant’s immediate reaction could be very likely to concern whether he had inserted the ticket to gain entry through the gate. The Appellant’s version was that after PW1 inspected the ticket and said there was no “entry record”, he raised the query as to whether the handheld ticket-inspection machine was faulty and demanded another inspection. PW1 disagreed with the Appellant’s allegation. However the reports filled in by PW1 supported the Defence’s version to a certain extent (PW1 filled in “Your inspection machine is out of order”, which apparently was a recap of the Appellant’s response to her, and not like what she said: She did not hear it with her own ears and it was a repetition to her by her supervisor of what the Appellant had said) or at the very least, could be used to test the credibility and reliability of PW1’s evidence. The Appellant should not be forbidden to conduct the cross-examination simply because the Prosecution did not rely on the reports.

18. As the Magistrate considered that the crux of the case was whether or not PW1 eye-witnessed the Appellant “forced open the gate”, he overlooked the possibility that if PW1’s subsequent acts could cast doubt on her evidence. Therefore the Magistrate did not truly deal with the Appellant’s case and his challenge against PW1’s evidence.

19. I do not agree with the Magistrate’s finding that even if the Appellant had held a ticket with entry record, the Prosecution could have still proved its case so long as he was satisfied that PW1 eye-witnessed the Appellant had “forced open the gate”. I have emphasized that this is a “one-against-one” case. If the Appellant did have an entry record, it would be doubtful if PW1 did actually see that the Appellant did not insert the ticket and “forced open the gate”, having taken into account that the ticket held in the Appellant’s hand was purchased at around 12:55 pm and PW1 said that she eye-witnessed the Appellant “forced open the gate” also at around 12:55 pm. The Magistrate should not have overlooked the evidence in this regard.

20. Furthermore, if the Appellant had not inserted a ticket and he “forced open the gate”, why PW1 said to the Appellant “please produce your ticket just now for a look” (Page 124P of Appeal Bundle) (underline added by this Court). PW1’s explanation was that “because I really don’t believe that you will have a valid ticket” (Page 154A of Appeal Bundle). It was common sense that if PW1 was so sure that the Appellant “forced open the gate” without using any ticket, why she would demand the Appellant to produce his ticket for inspection? On the contrary, was PW1 not sure whether the Appellant had actually inserted a ticket so she demanded him to produce his ticket for inspection?

21. I also note that as the Prosecution considered that only what PW1 witnessed was evidence relevant to the case, therefore the Prosecution had objected to the Appellant’s cross-examination on numerous occasions, saying that the Appellant was wasting time. The Magistrate had also interfered with the Appellant’s questioning on numerous occasions and thus interrupted his questioning. The Magistrate even summoned the court police and warned the Appellant that he could be sentenced to imprisonment if he committed a contempt of court (Page 259Q of Appeal Bundle).

22. On the basis that the Magistrate was wrong to think that he only have to consider the course of the incident as allegedly seen by PW1, he overlooked the need to consider if PW1’s subsequent acts and the circumstances of ticket inspection would cast doubt on her testimony, and the Magistrate’s attitude towards and Appellant and the way he interrupted his questioning, I am of the view the conviction was not safe, given that an informed bystander listening to the case would say that the trial was not fair (see  Yeung Mau Lam[3]).

23. I would also mention here that the Appellant described PW1 at a certain stage in her course of giving testimony as “speaking with a thick tongue”. The Magistrate showed strong disapproval towards the Appellant and demanded him to apologize to the witness. The Appellant asked the Magistrate to let him explain first before deciding whether he was insulting the witness, but the Magistrate did not listen to the Appellant’s explanation and did not allow him to explain. He insisted that the Appellant must apologize and at the end the Appellant did tender his apology to the witness (Page 203 I-R of the Appeal Bundle).

24. Admittedly, “speaking with a thick tongue” is a disrespectful description of the witness though the phrase is apparently not a foul word. I can understand the Magistrate’s disapproval. However when the Appellant repeatedly asked for a chance to explain why he would use such a phrase to describe her, the Magistrate should have let him explain first. The appropriate way to deal with it was that the Appellant should be allowed to make his explanation, and if after listening to his explanation the Magistrate still regarded the Appellant as having verbally insulted the witness, he could then demand the Appellant to tender his apology.

25. For the abovementioned reasons, the appeal is allowed. The Appellant’s conviction and the fine are quashed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.