HKSAR v. HO TIM FUK, JIMMY

HCMA 413/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 413 OF 2002

(ON APPEAL FROM TMCC 3030/2001)

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J U D G M E N T

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1. A motor vehicle overturned whilst being driven on Hung Tin Road in the New Territories in the early hours of 5th April 2001. The Appellant asked another person, who gave evidence as PW3 under an immunity from prosecution, to hold himself out to be the driver of the vehicle when, as a matter of fact, the Appellant had driven. The Appellant schooled him in what to say to the police. PW3 agreed and reported to the police purporting to be the driver. The explanation for this is said to be that the Appellant is a serving police; that he appreciated that he had been drinking prior to driving; that he asked other police officers who attended the scene to treat him favourably; that they, quite rightly, declined.

2. The Appellant now appeals his conviction by a Magistrate on a charge of doing an act tending or intended to pervert the course of justice. The trial lasted, including verdict, some eight days. 11 witnesses were called by the prosecution. The Appellant elected, as is his right, not to give evidence. The effect of this is that the Magistrate had nothing before him to contradict that evidence of the prosecution that he found to be acceptable.

3. The issue that the Magistrate had to determine was whether the Appellant had made the request to and schooled PW3.

4. The Magistrate found as a fact that the Appellant was the driver of the vehicle. He was fully justified in doing so. There was clear cumulative evidence from PW1 and 2, who are independent witnesses and whose evidence as to the Appellant's clothing as distinct from that of the passenger in the vehicle was supported by PW9; there was evidence from PW4, one of the police officers who attended the scene, that the Appellant asked for favourable treatment because he was a police officer and only denied being the driver after four abortive attempts to provide a breath sample; there was evidence from PW9 that the Appellant told him he was a police officer and the driver which was not challenged in cross- examination.

5. Having made that finding, the Magistrate relied upon the evidence of, primarily, PW3. He found some support for PW3 in the evidence of PW7, a friend of PW3. The Magistrate gave himself all of the appropriate directions. He accepted the evidence of PW3 and PW7 insofar as the latter was relevant. He drew the inference, on the evidence as a whole, as he was quite entitled to do, that it had been the Appellant who had spoken to PW3 on the telephone requesting him to pretend to be the driver. He accepted PW3's evidence and found as a fact that the Appellant had later told PW3, face to face, what to say when making a statement to the police.

6. Mr Duncan who represented the Appellant at trial and in this appeal made detailed submissions to the Magistrate who was clearly fully aware of everything that was put before him. The basis of this appeal is a revisitation of those matters which were before and considered by the Magistrate. There are compelling and cogent reasons in the Statement of Findings for the Magistrate having dealt with the matters raised in the way he did.

7. PW3 was before the Court for some three days whilst testifying. The advantage that testimony of that length, especially on matters as relatively limited as were these, affords a court in assessing a witness is obvious. The Magistrate saw and heard him over that period. He formed a favourable impression of him as a witness despite being aware of his own interests. He was entitled to comment in the manner he did.

8. He drew some support for PW3 from the testimony of PW7. He was aware of the fact that PW7 acknowledged himself to have been out drinking, apparently quite a considerable amount, prior to these events. Obviously that is a matter he would have taken into account in assessing the weight he was able to place upon PW7's evidence.

9. Courts are frequently faced with situations of this nature. The Magistrate demonstrated himself to be fully alive to the issues, the evidence and both the virtues and shortcomings of the witnesses. He considered the matters that were submitted to be inherently improbable: he considered what were submitted to be discrepancies or omissions. He properly evaluated the evidence. I am satisfied that the conclusions to which he came, for the reasons which he gave, on the evidence which he accepted were proper. There is no necessity for me to traverse them afresh.

10. There is nothing now before me which suggests that the decision at which he arrived is either erroneous or in any way unsafe.

11. The appeal is dismissed. The Appellant who has been on bail is to be taken into custody to serve the sentence imposed upon him.