HKSAR v. LIU DEN CHUN DAVID

HCMA 656/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 656 OF 2008

(ON APPEAL FROM KCS 7149/2008 & KCS 7150/2008)

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J U D G M E N T

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1.  On 18 June 2008, the Appellant pleaded not guilty to two summonses, the first alleging that he on 10 October 2007 at Reclamation Street near Shantung Street drove a private car FC 788 carelessly, contrary to section 38(1) Road Traffic Ordinance, Cap. 374.

2.  The second summons alleged that on the same date and time, and at the same place, the Appellant failed without reasonable excuse to comply with the indication given by a red light when shown by light signals contrary to Regulations 18 and 61(1) Road Traffic (Traffic Control) Regulations made under the Road Traffic Ordinance Cap 374 laws of Hong Kong.

3.  Having heard the evidence, the learned Deputy Special Magistrate convicted the Appellant on both summonses and fined him $1400 and $1000 respectively.

4.  Only two witnesses were called by the prosecution, PW1 was an engineer from the Transport Department who gave evidence of the operational sequence of the traffic lights at the junction of Reclamation Street and Shantung Street and produced a report in the form of exhibit “P3” demonstrating both the mechanical regularity and the length of the cycle of each change of light signals.

5.  PW2 was a civilian who testified essentially that while he was driving his motorcycle along the 3^rd lane of Reclamation Street at approximately 50 kph he saw the Appellant’s car in the 2^nd lane suddenly accelerate to 70-80 kph and without indicating cut into his lane in front of the motorcycle leaving only about a half a private car’s length to spare.  This caused PW2 who sounded his horn to slow down and swerve to the right to avoid a collision.  This was the evidence in relation to the first summons.

6.  The private car continued to travel at approximately 70-80 kph and according to the Magistrate’s Statement of Findings, when PW2 was about 5-6 private car lengths away from the junction of Reclamation Street and Shantung Street, he saw the traffic light change from amber to red at which point in time the private car was about a half a private car’s distance away from the junction.  PW2 said he then saw the private car jump the red light doing approximately 50-60 kph.  This was the evidence relating to the second summons.

7.  The Appellant in his evidence stated that he had been driving for over 20 years and had a clear record.  He had driven his car at the time and date in question to Reclamation Street in order to buy a fire extinguisher from a store called A Chan & Brothers Company Limited situated at No. 270 Reclamation Street, which was on the right hand side of Reclamation going north.  He produced as exhibit “D2” the invoice for such purchase.  He parked his car there.  After purchasing the fire extinguisher, the Appellant proceeded to drive along Reclamation Street and when he reached the junction of Soy Street he was in the 3^rd lane and he stayed in that lane all along.  He denied ever cutting into 3^rd lane from the 2^nd lane and he denied jumping the red light at the junction of Shantung Street and Reclamation Street.

8.  On 14 August 2008, Mr Oderberg, counsel for the Appellant filed on the Appellant’s behalf six perfected grounds of appeal against conviction.  I need go no further than ground one.  It reads “the trial Magistrate erred in law in convicting the Appellant on the charges in stating that she found the charges proven on the whole.  There is no clear statement of what facts she did not or may not have found proven.”

9.  Whilst it is right to say that the Magistrate had initially said in her Statement of Findings that she found the prosecution evidence (by which I assume she means PW1) honest and credible and that she accepted the evidence, by stating later on that “on the whole” (emphasis mine) she found the prosecution evidence to be honest and credible indicates that she must have had a change of heart and considered that some parts of that prosecution evidence was not honest and credible.

10.  Moreover this was very much a one against one case in which no independent evidence was available to assist the Magistrate one way or the other.  The Appellant had put forward in his defence what on the face of it appears to be a perfectly plausible account.  If it is right that he had stopped outside the store as he had said, then he would have had no need to veer across to the 2^nd lane.  It would be logical for him to remain in the 3^rd lane.  However the Magistrate in her Statement of Findings does not appear to have given sufficient consideration to this and has given no reasons at all as to why she disbelieved the Appellant, simply saying “I do not accept Mr Liu’s evidence”.

11.  Similarly with regard to the second summons relating to going through the red traffic lights, it appears from evidence that was accepted by the Magistrate that PW2 was 5-6 private car lengths away from the junction when he said he saw the lights turn from amber to red and when he said the Appellant was about a half a private car’s distance away from the junction.  Nowhere in the Statement of Findings of the Magistrate is there any indication that she had considered whether PW2 was mistaken about this.  Clearly he was some distance away when he saw the lights change to red and the possibility of the lights actually being on amber when the Appellant passed through the junction must be real.

12.  I would only add that Magistrates must be extremely careful not to use words and phrases such as “on the whole” when assessing the credibility or otherwise of witnesses.  To do otherwise simply indicates that a wrong standard of proof may have been applied.

13.  For the above reasons, I find that a doubt ought to have arisen in the mind of the Magistrate as to the proof of these two summonses.  Accordingly, I decline to confirm the convictions.  The convictions on both summonses are quashed and the sentences to be set aside.