HKSAR v. REEMA MAJEED MALIK

HCMA 655/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 655 OF 2012

(ON APPEAL FROM ESS 40437/2011)

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J U D G M E N T

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1.  The Appellant Reema Majeed Malik was convicted after trial before Deputy Special Magistrate Stephen Yeung for the charge of a pedestrian negligently endangering oneself under s. 48 of the Road Traffic Ordinance (Cap 374).

2.  The prosecution case (coming from 5 prosecution witnesses) was that the Appellant dashed out from the gap between a parked lorry on the roadside and some work ahead, and she bumped into a taxi which was travelling at normal speed on the road. 

3.  The defence case came from the driver of the lorry in front of which the Appellant dashed out.

4.  The Magistrate in his Statement of Findings stated that he preferred the evidence of the defence witness to that of the main prosecution witness, but nevertheless, he relied partly on the defence evidence to convict the Appellant. 

5.  Looking at the way the Magistrate dealt with the evidence, one cannot exclude the thought that he was picking and choosing from different witnesses in the manner of so called preference or balance rather than that he was sure that the cumulated effect of the evidence was one of guilty.  Because the large number of witnesses called, and there were some inconsistencies between their evidence, material or otherwise, it would take an inordinate effort for both the Respondent and the Court to recast and reconstitute the prosecution case in the sort of rehearing we have in a magisterial appeal.

6.  Miss Lo, for the Respondent, agreed that the better course is to allow the appeal and to send it for retrial.

7.  There is no other submission from the Appellant apart from acknowledging this. 

8.  Hence, I allow appeal and order it to be retried before another Magistrate.