HKSAR v. LEE FAI LAP PHILIP AND ANOTHER

HCMA 1106/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1106 OF 2003

(ON APPEAL FROM ESCC 2532/2003)

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J U D G M E N T

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1. The 1st Appellant was convicted of 4 charges, namely:

(1) Careless driving;

(2) Driving without a driving licence;

(3) Using a vehicle without third party insurance; and

(4) Conspiracy to pervert the course of public justice.

The 2nd Appellant is charged with the fourth offence together with the 1st Appellant, which is conspiracy to pervert he course of public justice.

2. The prosecution case was simply that the prosecution witness was a taxi driver who was driving in Wanchai and when he was near the junction of Luard Road, he saw a private car, later known to be the car in which both Appellants were in, moving in an unsteady manner and suddenly the private car turned across the taxi's carriageway and bumped into the taxi. The impact was on the taxi's right front and that can be seen in the photograph which was produced at the trial. The impact on the private car was on the left front.

3. So, after the collision, the taxi driver was able to see for a few seconds, the appearance of the driver and the front passenger in the private car at a distance about 5 to 6 feet. At that time, the evidence was that the lighting was sufficient and when the car suddenly drove away after the impact, he could also see that the male driver in the car had on a black upper garment and he had long hair. He did not wear spectacles and the passenger had dyed hair and was wearing spectacles.

4. The private car then reversed and left the spot of collision. PW1 radioed his taxi station to call the police. The private car drove a short distance and stopped at the junction of Johnston Road and Ship Street, and then both Appellants got out of the car and came up to talk to the taxi driver. Apparently, the 2nd Appellant had offered to compensate the taxi driver.

5. Shortly after that, the police arrived. When the police sergeant asked who were the respective drivers, the 2nd Appellant claimed that he was the driver. At that time, the taxi driver who was standing close by immediately told the sergeant that it was the 1st Appellant and not the 2nd Appellant who was a driver.

6. Subsequently the Appellants were arrested. Of course both Appellants denied that they had perverted the course of public justice because the 2nd Appellant had all along claimed that he was the driver. It transpired at the trial that the 1st Appellant did not have a valid Hong Kong driving licence and that both Appellants had a clear record.

7. The learned Magistrate in assessing the evidence correctly reminded himself as to the evidence of a hostile witness called by the prosecution and correctly identified the issues in the case and the identification evidence. But what is unfortunate is that at p. 87 of the appeal bundle, in his Statement of Findings at paragraph 31, he had this to say after dealing with the Appellants' clear record and properly reminding himself about the bias directions, he said this:

"I find that his assertion in the said responses and records that the 2nd defendant was the driver was not credible. I find each of the 1st and the 2nd defendants had the propensity to commit the present offence of conspiracy to pervert the course of public justice."

8. It is unfortunate that the learned Magistrate had used the word "propensity" in this paragraph. If one reads this paragraph together with the paragraph when he properly directed himself as to propensity under the Vye direction, the only assumption one can make is that the learned Magistrate had wrongly used the word "propensity". But I cannot put words into the Magistrate's mouth or make assumption as to what the learned Magistrate was trying to say.

9. Ms Chan had pointed out another case to me, the case of HKSAR v Law Kwok-kuen, Sidney HCMA 50 of 1998, where the learned Magistrate in his Statement of Findings also improperly used the word "propensity" but Nguyen J found that it was not fatal to the conviction because there were other evidence and it is clear from the learned Magistrate's oral reasons that he did not need to say that at all. But in this case, the issue is the credibility of the prosecution witness against the credibility of both Appellants and I cannot completely dismiss the fact that if the learned Magistrate had been thinking that both Appellants had the propensity to commit this crime, this may have affected his ultimate assessment of the credibility of the Appellants.

10. Although as I have said, it would appear unlikely because he had properly warned himself. But nevertheless that is a concern, justice has to be seem to be done and therefore in this case, I find that it would be unsafe to let the conviction stand. So, the appeal is therefore allowed and the convictions are quashed.

11. I have also considered the matter of whether this case should be sent back to the Magistrate's Court for a re-trial, counsel representing both the Appellants, Mr Lam had objected to this on the ground that the Appellants had already been in custody from 27 October to 9 December when they were granted bail by myself and that they had incurred legal expenses and suffered psychological stress.

12. I have to balance the interest of the Defendants against the interest of society. These are very serious charges, particularly charge 4, the conspiracy to pervert the course of public justice. The fact is, if an unlicenced person is allowed to drive on the public road, the danger to the lives of innocent people using that road is extremely high and the court would be loathe to be seen to be encouraging this sort of behaviour and therefore, the sentence for these sort of offences would normally also reflect the horror of the court for this type of offences. Society's interest is clear that those who offend against the law on this should be brought to justice.

13. So balancing that, I understand, of course, and sympathize with the Appellants that they had incurred legal expenses and psychological stress but that is par for the course. As far as legal expenses are concerned, there is the duty lawyer service in the Magistracy which they can avail themselves of and therefore in all the circumstances, balancing the interest of society and that of the Defendants, I am inclined therefore to send this case back for a re-trial because there is good evidence and it is a matter for the learned Magistrate trying the case to reach his own conclusion. So the appeal is allowed, convictions are quashed and the case is remitted back to in the Magistrate's Court for a re-trial.

14. I also add this that I am in no doubt that at the end of the day whatever happens, the learned Magistrate who tried this case for a second time will be aware of what has transpired so far and no doubt will take everything into consideration.