HKSAR v. TSANG CHIU SUN, BRUCE AND ANOTHER

HCMA105/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.105 OF 2003

(ON APPEAL FROM NKCC 7582 OF 2002)

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J U D G M E N T

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1. The appellants were charged with the offence of conspiracy to pervert the course of public justice, contrary to sections 159A and 159C of the Crimes Ordinance, Cap.200, Laws of Hong Kong. They pleaded not guilty and engaged senior counsel to represent them at the trial. On 24 December 2002, the appellants were convicted after trial. The learned magistrate sentenced them each to 80 hours of Community Service Order. They sought to appeal against convictions only.

2. The trial was conducted in Chinese but I had granted leave to the appellants to use English for their appeal. Solicitors for the appellants had undertaken the translation into English all the relevant transcripts and documents. Mr Harris, now acting for the appellants, stated that although he was relying on the translation, his client would not be prejudiced as he had the assistant of his junior, who is conversant in Chinese. He, however, accepted that in case there was any issue arising on the translation, the original version of the evidence and documents would have to be relied on by the court. In the end, this appeal did not turn on any fine point of interpretation.

3. The case arose from a traffic accident and there was allegedly a "switch of driver" situation. On 1 June 2002, at about 20:30 hours, a collision had occurred between two vehicles, a light goods vehicle HM 5865 (V1) and a private car KH 1185 (V2). It took place at the junction of Hoi Ting Road and Hoi Wang Road. Both vehicles were damaged at point of impact. After collision, PW1, the driver of V1, had stopped his goods vehicle while V2 had moved on for some distance before it also came to a stop. PW1 said he saw the 2nd appellant came down from the passenger side of V2 and later the 1st appellant alighted from the side of the driver seat. Both parties had made a report to the police. PW1 also said that at the time of the collision, he saw that the woman passenger had turned her head and looked towards his direction. PW2, the police officer, arrived at the scene to conduct investigation. The 2nd appellant told the officer that she was the driver of V2 but PW1 said that the driver was actually the 1st appellant. Upon further investigation, the officer decided to arrest the appellants for the offence of conspiracy to pervert the course of justice. The appellants remained silent under caution.

4. At the trial, the prosecution had called a total of three witnesses. PW1 was the driver of the light goods vehicle. The other two were officers who had attended the scene. Both the appellants had also testified.

5. Before the hearing of the appeal, Mr Harris sought to introduce some new evidence and I had granted the application in relation to three of the documents. They were the Scale Road Maps issued by the Transport Department, the Survey Report of the car by Clover Motor Adjusters Company with photographs showing the extent of the damage on V2 and a page from the Road Users' Code issued by the Transport Department.

6. The appellants had listed out a total of 12 grounds of appeal. I believe the points could be summarized into two main categories :

(1) The learned magistrate had failed to give sufficient weight to the issue of lack of motive on the part of the appellants in committing the offence. He had also failed to provide sufficient reasons for rejecting the appellants' evidence. In short the magistrate had failed to adequately address the defence case.

(2) The magistrate had failed to give a fair and proper evaluation of the factors affecting the credibility, reliability and accuracy of PW1's account. PW1 had a criminal record, he had a possible motive to make up the allegations and he had given inconsistent versions in his previous witness statements.

7. In support of his arguments, Mr Harris had submitted a detailed skeleton dealing with and expanding on the various aspect of the grounds of appeal. He argued forcefully that considering all the circumstances, a conviction would be unsafe and unsatisfactory in the present case.

8. The respondent had also submitted a skeleton in reply to the points raised by the appellants. In court, Ms Leung, Senior Government Counsel, made particular reference to the point about the lack of motive for the commission of the offence. It was stressed that motive was not an element of the offence and sometimes there might not be any apparent motive for someone to do something. Of course, this is true. But what Mr Wong, counsel for the appellants at the trial, had argued and now pursued by Mr Harris, was not simply that there was a lack of motive to commit the offence but that it was a situation where there was proof of an absence of motive to commit the offence. Mr Wong had stated in his final submission that this would tend to support the defence case. This view was apparently accepted by the learned magistrate as could be seen in paragraph 37 of the Statement of Findings.

9. The core issue in this case was the credibility of PW1. The magistrate's task was to make factual findings based on his assessment of the witnesses whom he had seen and heard in Court. There can be no doubt that the appellate court would be very slow to interfere with a finding of fact made by the trial magistrate. But having said that, the trial magistrate should make a fair and proper assessment of the witnesses without which the basis of the conviction may be in doubt.

10. When one is to read carefully the transcript of the trial, particularly the testimony of PW1, a peculiar feature would surface. In his evidence-in-chief, PW1 appeared to be very forthcoming. He answered questions from the prosecutor and the Court clearly and directly. The magistrate had interfered very little except on those occasions when he had difficulty understanding the accent of PW1. However, when it came to the cross-examination, PW1's attitude had noticeably changed. He became very evasive, argumentative and defensive. On many occasions, defence counsel had to invite PW1 to wait for the whole question and give his answer directly. Even the magistrate had to interject on numerous occasions to try to control the witness and have to resort to rather strong words to remind the witness to behave. Such instances could be seen in the following pages in the transcript: pages 60, 67, 69, 70 and 82.

11. It is not clear why PW1 would need to adopt such an attitude if he was simply relating the incident as he had recalled it. Unfortunately, the learned magistrate had made no reference to such matters in his Statement of Findings. He simply concluded that PW1 was an honest and reliable witness. He accepted PW1's evidence that the 2nd appellant had come down from the passenger side of the car. He seemed to conclude that all the points raised in cross-examination were trivial and irrelevant matters which would not affect the credibility of PW1.

12. However, if one is to consider the cross-examination closely, the issues raised could not be easily dismissed as being irrelevant or insignificant. In fact, many of the questions asked were in direct response to the firm statements made by PW1 in his evidence-in-chief. For example, PW1 said in chief that the woman passenger had turned and looked in his direction at the time of collision and he could see that very clearly. The prosecutor had rightly asked why he knew it was a woman passenger. PW1 said it was because she had long hair. Defence counsel then followed up on this and questioned PW1 why he did not give such a description in his witness statements. Then PW1 became evasive and gave ambiguous answers. Counsel also asked PW1 why he did not refer to the "turning of head" in his earlier witness statements. PW1 gave several explanations and then told the Court that he had never mentioned this in any of his statements. He maintained this position even in his re-examination. But it is apparent from the transcript (pages 81 to 85), that actually PW1 had referred to it in one of his statements. This is an important aspect of PW1's evidence because if he did see the 2nd appellant clearly in the passenger seat at the time of collision, it might strengthen his evidence regarding the identity of the driver and might eliminate the possibility of a subsequent mistaken identification.

13. By the same token, it appeared that the points about the colour of the clothing and the type of shoes were raised in cross-examination as a follow-up on PW1's confident descriptions of such details in his evidence-in-chief. Objectively speaking, the answers given by PW1 in the cross-examination had really rendered his earlier answers rather equivocal. I fear that the learned magistrate had dismissed the matters raised in cross-examination too easily and readily.

14. Considering all the circumstances, I have to conclude that the learned magistrate had indeed failed to make a fair assessment and evaluation of Pw1 as a credible and reliable witness. Furthermore, the finding in paragraph 29 of the Statement of Findings regarding the lack of response by the appellants was also not entirely correct as shown in paragraph 11. The warning in this regard was therefore not complete as the appellants had effectively denied the allegations at the scene and hence, their reaction should also have been taken into account regarding consistency.

15. On the face of it, the learned magistrate had reminded himself to be careful in assessing the evidence of PW1 due to his previous criminal record involving dishonesty. He also agreed that an inference favourable to the defence could have been made based on the established lack of motive on the part of the appellants. If the learned magistrate had indeed given a fair and balanced assessment of PW1's evidence in light of the particular warning and principle, it is questionable whether the evidence really justify the conclusion that the prosecution had proved the offence beyond a reasonable doubt.

16. There remained to be a lurking doubt in this case and I have to agree with the appellants that on the evidence as a whole, the conviction is unsafe and unsatisfactory. I would therefore allow the appeal and quash the convictions of both appellants. Although they might have completed the community service orders already, for the purpose of the record, I would order that the sentences are to be set aside.