HKSAR v. YU CHI ON

HCMA 140/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

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J U D G M E N T

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Facts:

1. The Appellant was convicted after trial by a Special Magistrate of careless driving. According to the facts as found by the trial magistrate, he hit the rear of PW1's private car which was stopped in front of the yield lines before the interchange or roundabout at Shap Pat Heung. At the scene, he agreed to compensate PW1 for the damage but had a disagreement as to where PW1's car should be taken for repairs. When PW2, a plainclothes policeman, arrived at the scene, the Appellant allegedly told PW2 that he hit the rear of PW1's car as it stopped before the yield lines giving way to a blue vehicle which entered the roundabout.

Ground 1 Voir Dire:

2. Mr. Lee submitted that what was allegedly said by the Appellant amounted to an admission and the Special Magistrate should have held a voir dire. I do not agree. In Thongjai & Anor v. The Queen, [1997] 2 HKC 109, an appeal to the Privy Council from Hong Kong, Lord Hutton held at page 118:

In the present case, there was nothing in the evidence to suggest that the admission was made in circumstances other than they were made voluntarily. In cross-examination, the Appellant put to PW2 that he never saw him at the scene. This implies that the conversation PW2 allegedly had with him never occurred. If so the issue is whether PW2 was telling the truth and not whether the alleged oral admission was given voluntarily. In my view, the question of voluntariness does not arise. There is no need for the Special Magistrate to hold a voir dire. This ground of appeal must fail.

Ground 2 & 5 Trial magistrate's duty to assist defendant:

3. These two grounds are concerned with a trial magistrate's duty to assist an unrepresented defendant and in particular to assist him to cross-examine prosecution witnesses. These two grounds can conveniently be dealt with together.

4. A trial magistrate does have a duty to assist an unrepresented defendant. However, his duty is not the same as that of a defence counsel. It is not his duty to take over the conduct of the defence and to raise every possible defence for the defendant. If he does so, he is entering into the forbidden arena. These principles are well established in our law. However, the extent to which it is proper for a magistrate to assist is difficult to formulate. In The Queen v. Chan Chun Kit, MA 40 of 1991, Fuad, V-P, held:

5. In that case, Fuad, V-P did not have to formulate the extent to which it is proper for a magistrate to help an unrepresented defendant, as he was satisfied that the magistrate exceeded his duty to assist by taking over and conducting the defendant's case for him. It is not with any disrespect to Fuad V-P that I should now attempt to enlarge on his statement as to the extent to which it is proper for a magistrate to help an unrepresented defendant as these issues are now raised by the appeal now before me.

6. To understand the extent a trial magistrate should assist an unrepresented defendant, one must start with the proposition, as Fuad V-P suggested, that it is a matter for the magistrate's discretion as to how he may conduct the trial in the overall interest of justice. The magistrate was not at the scene of the offence and does not have any instructions from the defendant as to what had happened. He does not know what the defendant has in his mind, or in his sleeves. He may not appreciate the defendant's tactics. He will have to ask the defendant what his case is to be able to give him appropriate help. On the other hand, he may not and should take instructions from the defendant in open court, lest what he said in answer may prejudice his defence or may even incriminate him or may be used against him by way of comment by the prosecution or by way of cross examination of the defendant or his witnesses. It might infringe the defendant's right to silence or right against self-incrimination. Thus the discretion as to how a trial magistrate should assist has to be exercised with extreme care and the assistance a magistrate could offer is limited.

7. On the passive side, his duty is to ensure a fair trial in the overall interest of justice. This includes the duty to ensure that the rules of practice and procedures are properly observed at the hearing; to ensure that the defendant would not be prejudice by his lack of legal representation, to ensure that only admissible evidence would be admitted against him.

8. On the active side, he should assist the defendant to test the prosecution case. This includes assisting the defendant in cross-examining prosecution witnesses. He must do so with great caution. To be able to assist the defendant, he has to enquire from him what his case is about, bearing in mind the risks I have referred to above. Furthermore, over zealous cross-examination may be counter productive. It may strengthen the prosecution witness' credibility or even destroy the defence case altogether. Thus how a magistrate should exercise his discretion whether and how to assist in cross examining a prosecution witness has to be understood in this light and in the light of the circumstances then appealing to the trial magistrate. He should also assist the defendant in advancing his defence, e.g. by helping him to overcome technicalities in procedures.

9. Mr. Lee submitted that according to the statement of finding, in evaluating the evidence, the Special Magistrate placed great weight on the Appellant's admission to PW2 that the collision occurred in front of the yield lines and his offer to make compensation. Mr. Lee submitted that these were 'live issues' and the Special Magistrate should have assisted in cross-examining the witnesses on these issues.

10. The Special Magistrate did not cross-examine PW2 about the admission. However, according to the transcript, he did ask a few questions in clarification while the witness was giving evidence in chief (at page 15 and page 16 of the transcript). The answers turned out to be unfavourable to the Appellant. As I have said, over-zealous cross-examination may be counter productive. The exercise of the discretion whether to assist in cross examination should be understood in the light of the circumstances then appealing to the Special Magistrate. In view of those answers PW2 gave in chief, I think the Special Magistrate was right not to cross-examine further.

11. According to the transcript, the Special Magistrate did not cross-examine PW1 about the compensation. I have outlined the caution the magistrate has to exercise in assisting the cross-examining a witness. What was allegedly said by the Appellant is a damaging piece of evidence. However, at that stage of the proceedings, the Special Magistrate did know what was in the defendant's mind. If he inquired from the defendant in open court before deciding to cross examine, he ran the risk of obtaining an incriminating answer from the defendant which would prejudice his defence and infringe his right to self-incrimination. If he suggested to PW1 that no compensation had been offered, he would be met with a denial. Whether to assist and how to assist is a matter of discretion. I do not think the Special Magistrate could be criticised for exercising the discretion in the way he did. With hindsight, it would have been desirable for the Special Magistrate to suggest to the defendant whether he would wish to ask questions about the alleged compensation.

12. Mr. Lee referred me to The Queen v. Leung Kwong Cheung, MA 1139 of 1990. He submitted that the Special Magistrate should have put the issue of compensation to the Appellant to see how he would respond before accepting PW1's evidence that the Appellant had offered to compensate. In Leung Kwong Cheung, a statement of agreed facts was presented to the magistrate. It stated that the defendant gave a statement under caution in which he said he had just been handed a packet by the co-defendant. The defendant gave evidence in accordance with what he said in the cautioned statement. The magistrate did not believe that the defendant had just been handed the packet and convicted him. On appeal, Kaplan J, held that at no stage during the cross examination was it put to the defendant that he was not telling the truth about being handed the packet before the police arrested him. He allowed the appeal and held had that been made clear to him, the magistrate would have the benefit of hearing what he had to say about it. That is not a case about the trial magistrate's duty to cross-examine a prosecution witness. However, it obliquely touches on the trial magistrate's duty to ensure a fair trial. On the authority of Leung Kwong Cheung, this raises a more substantial ground.

13. In Leung Kwong Cheung, the only issue for the trial magistrate was whether the defendant just received the packet and had no knowledge of its content. That this was not so, which formed the sole basis for his conviction, had not been put to the defendant. However, in the present case, the Special Magistrate had before him the evidence of PW1 on how the accident occurred and where it occurred. He had the Appellant's account of the accident. It was a rather strained account. He said that PW1's car was on his left and entered the roundabout together. Suddenly PW1 cut into his lane to make way for a blue car which entered the roundabout; then it steered straight and stopped suddenly without any reason. Hence the right front part of his van hit the rear left of PW1's car. This account is inherently incredible. There is no reason why PW1 should stop, there being no obstruction in front of him. If PW1 wanted to exit from the roundabout, he would not have cut into the Appellant's path but would have stopped to let the blue car enter and then followed it and exit. The Appellant's account was to explain how the peculiar damage was caused to the two vehicles. The Special Magistrate found that wholly incredible. So do I. The statement of findings shows that Special Magistrate had analysed the evidence carefully and in depth. Even ignoring the offer of compensation and the admission, the Special Magistrate would have and is entitled to come to the same conclusion. This could not be said of The Queen v. Leung Kwong Cheung, which is therefore distinguishable. These two grounds of appeal must also fail.

Ground 3 and 4:

14. These two grounds could be conveniently dealt with together. Mr. Lee submitted that there is one major discrepancy between the evidence of PW1 and PW2 as to whether the vehicles driven by PW1 and PW2 had stopped in front of the yield lines before entering the roundabout and that the evidence of PW1 is incredible.

15. There is no dispute that the vehicles stopped after the collision inside the roundabout. PW1 said he stopped in front of the yield lines and was hit from the rear, then he alighted and he had not moved the vehicle. If so, his vehicle should not be found by PW2 inside the roundabout. In recounting what PW1 and the defendant told him at the scene, PW2 said that they both agreed that after the collision they drove into the roundabout. The Special Magistrate had evaluated the discrepancy and accepted what was recounted by PW2 was correct and attributed the discrepancy to PW1's failure of memory. That is a finding of fact which the Special Magistrate is entitled to on the basis of the evidence. I should not interfere with that finding. In fact, my view of the evidence is that after being hit from behind, PW1's vehicle was projected into the roundabout where he stopped. He did not move the vehicle voluntarily into the roundabout. When he stopped, he was in the roundabout. This would have resolved the apparent descrepancy. These two grounds of appeal must also fail.

16. For the above reasons, the appeal against conviction is dismissed.