HKSAR v. TONG, TAI WING WINSTON

HCMA45/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 45 OF 2007

(ON APPEAL FROM ESS 22229/2006)

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J U D G M E N T

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1. This is an appeal against conviction for careless driving.  It follows contact that took place between a private car driven by the appellant, and a taxi driven by the first prosecution witness called at the trial below. 

2. The contact took place on that part of Cotton Tree Drive where you can turn left by the Bank of America Tower into Lambeth Walk.  The configuration of the road layout there is this:  that on the left-hand side, there is a lane in which you can go to Fairmont House or into Lambeth Walk; there is a middle lane in which you can go straight on, or turn left into Lambeth Walk; and there is a third lane.  That third lane, the right-most lane, is reached by coming in a U-turn underneath the flyover there. 

3. The prosecution's case was that the taxi-driver was in the middle lane and was going to turn left into Lambeth Walk when the appellant drove his motor car from the right-hand most lane into the middle lane, tried to get in front of the taxi in order to go into Lambeth Walk itself, and misjudged it,  causing the back left-hand side of his motor car - a Mini - to clip the front right-hand bumper of the taxi. 

4. The appellant's case - and he gave evidence - was that he had moved over successfully into the middle lane, he was in possession of the middle lane and that it must have been the taxi pulling out of the first lane who caused the collision, driving into him.  In other words, the issue was a very simple one:  who was in possession of the middle lane at the relevant time? 

5. There are two basic grounds of appeal.  I will take the second one first because that is the order in which Mr Beel took them today.  The second ground reads as follows: 

"The learned trial magistrate unduly interjected during the proceedings and made comments prior to making her statement of findings, thereby raising an appearance of bias so as to cast doubt on her judgment and/or the fairness of the said proceedings."

6. That is a serious allegation to make against someone who sits as a magistrate, and this magistrate was sitting as a deputy special magistrate.  Accordingly, there is a full transcript of what took place below and Mr Beel started his submissions today with me asking him to say where on the transcript I can see any of those things which would give rise to or support that second ground which I have just read out.  The fact is that when I have taken him around the transcript, asking him where these matters appear, one cannot find it.  It does not exist.  What he says is, "Well, I cannot point to any one thing, but the fact is, there were 38 questions asked of the appellant when he gave his evidence, and there were certain questions asked of the prosecution witnesses, and the number of questions just of themselves, demonstrate that it was unfair or that there was the appearance of bias."  I wish to say straight away that, having read this transcript carefully, I can find nothing to support that. 

7. Examination of those instances where the magistrate spoke -  produces nothing that can begin to be the subject of any legitimate criticism.  In particular, Mr Beel took me to pages 125, 126 and 127 of the bundle in response to me saying, "Well, you show me where this badgering is," because that is what he alleged whilst on his feet.  Frankly, there is no badgering there of the witness.  The magistrate wanted to know the answer to a question.  It was about an assessment of how long the appellant had been in the middle lane.  If one took out the word "COURT" on the transcript and merely put "Q." and "A." for the relevant interchange between bench and witness, it would have read like evidence-in-chief.  It was someone merely seeking the answer to a factual question and there was nothing wrong with the magistrate asking the questions.  That was the high point of the case.  It was also suggested at one stage that somehow the magistrate and the prosecutor were performing some sort of double act together.  There is simply nothing in the transcript to support that allegation. 

8. The fact is that the ground of appeal is based on an outdated, old-fashioned view of what trying cases in the Magistracy and, indeed, in other courts, is like these days involving a modern approach to case management. 

9. This was a case of enormous simplicity.  I managed to state the issue, I think, in a few lines at the opening of these reasons.  That is just what this sensible deputy special magistrate sought at the beginning of the trial. 

10. Counsel who appeared for the appellant before the deputy special magistrate was a senior junior and when asked what the issue was in the case, he declined to say and answered in terms that this was going into - and I quote his words - "waters which are not necessary to go into".  He said, "I am not here to tell the prosecution what to say and alert them to what the points are in this particular case.  I will be cross-examining the driver and I think the issue will become clear during the course of my cross-examination."  That paraphrases what he said.  Of course, he was not obliged, I suppose, to tell the magistrate what the issue was, but what harm would it have done?  It would have concentrated everyone's mind in a manner which, if he had a good case, would help the side who was likely to be in the right.

11. I am not going to name the counsel who appeared below because he is not here to defend himself.  I want to make it absolutely clear it was not Mr Beel who has conducted this case, despite some extensive interchange between bench and bar, very politely with a smile on his face. 

12. The test is, what would an objective bystander think of what went on at this trial and I regret to say - and I say it with dismay - that I think an objective bystander at the back of the court would have seen a senior barrister throwing his weight about in front of someone who was the more junior in the profession; who was aggressively provocative; rude on occasion; and did not concentrate on the issues.  I judge that an objective bystander would have seen a magistrate who met that with politeness, moderation and some firmness.  Let me just illustrate that. 

13. The first witness was called to give evidence - the taxi-driver.  The magistrate asked a question as to what the name of a road was and then asked how many lanes it had.  That produced an objection from defending counsel below.  He said this:  "Madam, I've already heard a lot of questions from the court.  It started off rather badly with the court asking me the defence case.  I don't know if we're going to continue like this with the court basically asking all these questions because when the court gets involved in the case, the question of partisanship arises."  And later on - he said a lot; I am not going to read it all out - he said, "The court becomes involved in the case and unconsciously starts dealing with the issues in its own mind as if it was the prosecutor and that is the difficulty with these cases."  A mere request of how many lanes there were on the road in question produced that. 

14. It reveals an attitude in counsel that assumes, somehow, that by merely asking such an innocent question requesting information, that this would unconsciously make the magistrate deal with the issues as if she was the prosecutor.  His assertions in that regard seem to me wholly unrealistic and completely unjustified. 

15. There are other examples in the transcript of behaviour in a like vein.  I am not going set it all out now because what matters here today is whether or not I think there is the beginnings of any support for the complaint made in ground two of the grounds of appeal.  I say without any hesitation at all that there are none such. 

16. The only other comment I will allow myself is this:  if there had been an acquittal, I think it would have been despite the advocate and not because of him.  Good manners, a light touch, the virtues of brevity: all were completely lost as was, I think, a sense of proportion.  I will say no more about ground two.  There is absolutely nothing in it.

17. Let me turn to ground one which deals with the merits.  I will not read out the whole ground because it talks about a failure to deal with discrepancies and the inherent probabilities and the like.  Mr Beel has put his points in writing, expanded on them today but not gone outside the written submissions that he made.  I do not deprecate his points by describing them as jury points, but that is what they were.  Nothing in them, in my view, upsets the assessment that the magistrate made on the evidence before her.  She gave reasons in her long statement of findings, as to why she found accuracy and reliability in the evidence of the taxi-driver and why she did not accept the assertions made by the appellant. 

18. Each one of the individual written submissions made was dealt with by Ms Laura Ng in her written response.  I am not going to read it all out.  Suffice it to say that I found good common sense in her response to the points, which were well met by her arguments. 

19. I will not decide the case merely though by saying that the magistrate was in the better position to judge the credibility of the witnesses because I believe the inherent probabilities - and it is a phrase that has been used a lot in this appeal - in fact favoured the taxi-driver. 

20. Mr Beel, in his argument today to me, said this:  "He" - referring to the taxi-driver - "was the one who saw it happen.  The defendant did not see it."  And if one thinks about the two conflicting cases that give rise to the issue here, the fact is, the inherent probabilities favoured the taxi-driver because if the appellant was right, the taxi driver moved lanes or moved to his right, into something that was in his face.  It was right in front of him.  People do that on occasion, of course, but it is a much less likely a thing to occur than someone who has to look over his left shoulder to see what it is  that is there and what it is he must avoid.  The inherent probabilities certainly favoured the prosecution case here.  Accordingly, the appeal against conviction on both grounds is dismissed. 

(Submission re costs)

21. My view is that this appeal was unmerited.  It is not suggested that there is any merit now in ground No. 2.  Mr Beel argues that there is merit in ground No. 1.  All I need say is I am against him on that.  Costs of the appeal to be paid by the appellant to be taxed if not agreed.