HKSAR v. LI CHUN SAU

HCMA84/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.84 OF 2003

(ON APPEAL FROM KCV 225 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant was convicted, after trial on a summons, of driving a vehicle whilst not wearing a seat belt contrary to Regulation 7A(1)(a) of the Road Traffic (Safety Equipment) Regulations made pursuant to the Road Traffic Ordinance, Cap. 374.

3. The facts of the case as found by the magistrate were obtained wholly from the evidence of PW1, a police officer on motorcycle traffic duties, who said that the appellant was seen by him when approaching the vicinity of the intersection of Argyle Street and Yim Po Fong Street in Kowloon driving a goods vehicle whilst not wearing a seat belt.

4. He told the appellant to stop in nearby Nelson Street and, after the appellant did so, told the appellant of the contravention and issued an infringement notice.

5. The single ground of appeal advanced by the appellant is that the magistrate wrongly accepted the evidence of PW1.

6. The appellant before me argued that PW1 had lied in his evidence before the magistrate when he said that he had seen the appellant was not wearing a seat belt. The appellant contends he was wearing a seat belt at that time. The appellant relies on three primary aspects of the evidence to establish that PW1's evidence was unreliable.

7. He says, firstly, it was raining that day and PW1 would have been unable to see through the appellant's van window which in any event was very dirty so as to see whether the appellant was wearing a seat belt. Secondly, the appellant says it was dark at 9:25 a.m. on that morning when the incident occurred and PW1 would have been even less likely to have been able to see whether the appellant was wearing a seat belt and finally the appellant argues that the evidence of PW1 as to the route taken by PW1 and the appellant, from the point where PW1 said he saw the appellant not wearing a seat belt in Argyle Street to where he was spoken to by the officer in Nelson Street, did not make sense.

8. To a large extent that advanced before me by the appellant for the purposes of this appeal is simply a revisiting of the factual issues decided by the magistrate.

9. As Keith J (as he then was) said in The Queen v. Hui Kee Fung, HCMA 196 of 1994 :

" Appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The mere desire to obtain another finding on the facts is not sufficient to justify the invocation of an appellate process which treats the findings of fact by a court of first instance as so sacrosanct as our system of criminal justice does."

That statement of principle applies in large part to the appellant's arguments in the present case.

10. Each of the matters (with the exception of the last) raised by the appellant before me was properly raised before and dealt with by the trial magistrate.

11. Insofar as the first matter was concerned, the magistrate said :

"... The officer's recollection was that the weather was fine but cloudy. The defendant referred the officer to a report from the Observatory that rainfall was recorded in Tsim Sha Tsui at 9.00am. The officer maintained that his recollection was that in Mong Kok at 9.25am the weather was fine but cloudy."

The magistrate clearly took this evidence into account.

12. So far as the issue of the state of the light at 9:25 a.m. in the morning was concerned, the magistrate was entitled to take judicial notice, as he did, that at that time in the month of April in Hong Kong conditions are not "quite dark" as the appellant alleged in his evidence.

13. Further regarding the appellant's allegation that the driver's side window of his van was very dirty so as to make it difficult to see through in any event and was only partially open the magistrate said in his findings :

"[The appellant] said the window was dirty and yellow because of the food burning wood he delivered. He was asked how he was able to see into his rear view mirror through the dirty window and he said he could not see very clearly."

and later

"... I did not believe the window of his vehicle was only open a few inches as he asserted. He said the window was dirty and this would affect his view into the rear view mirror. I was satisfied so that I was sure that his window was open and the officer was able to see through the window that the defendant was not wearing a seat belt on Argyle Street. ..."

14. So all of these matters were raised in evidence and argued before the magistrate. Essentially the appellant is simply re-arguing the same matters before me.

15. The magistrate was aware of these matters. He addressed them properly. His findings in regard to them were reasonable. There is no merit in the appellant's criticisms of the magistrate in this regard.

16. Finally the appellant argued at length before me, apparently for the first time, that the evidence of PW1 should have been rejected because the route PW1 ordered the appellant to drive from Argyle Street to Nelson Street, after he saw the appellant not wearing a seat belt and so as to have him not interfere with traffic when he stopped, made no sense.

17. The appellant's own evidence before the magistrate had been that he travelled from Argyle Street, turned right at Yim Po Fong Street and stopped in the vicinity of Nelson Street. He said however before the magistrate that he had done this of his own volition and had only noticed the officer and been spoken to by him once he arrived in Nelson Street.

18. He argued before me that if the officer's evidence was correct and he the appellant had been travelling in the second lane from the curb approaching Yim Po Fong Street then he would have not been able to turn right into Yim Po Fong Street, as the second lane from the curb requires traffic to proceed straight ahead. He said that cast considerable doubt in respect of the officer's evidence as to where the officer was when he claimed to see the appellant not wearing a seat belt. In support of this contention, the appellant provided a number of photographs of the intersection. Those photographs do clearly show that the second lane of traffic is required to proceed straight ahead at the junction of Argyle Street and Yim Po Fong Street.

19. Accepting that this was never argued before the magistrate I want to emphasize that it is simply too late to argue a factual issue for the first time on appeal when the evidence supporting and concerning that issue was before the magistrate or available at trial. An appeal hearing is not a place to rehash the issues argued at trial. Nor is it the place for a hearing de novo of additional arguments based on evidence which was available for the purposes of trial.

20. That alone is enough to deal with this complaint of the appellant. But I will, perhaps unnecessarily, also point out that the appellant's fresh argument in this regard is flawed by the simple fact that in his own evidence at trial he said that he had turned right into Yim Po Fong Street from Argyle Street. He was not therefore still in the second lane from the curb when he arrived at the intersection.

21. PW1's evidence was that the appellant was in the second lane from the curb in Argyle Street as he was approaching the intersection and at the time he noticed the appellant was not wearing a seat belt. PW1 did not, so far as can be seen from the magistrate's findings, give evidence to the effect that the appellant had stopped at the intersection only after having passed the double separation lines which separate the second lane from the lanes of traffic which turn right into Yim Po Fong Street and which would have made it difficult for the appellant to turn right into Yim Po Fong Street.

22. In other words, there may well have been a quite simple answer to this fresh assertion of the appellant if it had been raised before the magistrate and particularly if it had been, as it should have been, put to PW1 in cross-examination. It is simply too late to raise this as a fresh argument on appeal.

23. There is nothing in this final complaint of the appellant and his appeal against conviction is dismissed.