HKSAR v. WONG LAP CHI

HCMA325/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 325 OF 1999

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J U D G M E N T

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1. The Appellant was convicted on 24th March 1999 of illegal parking. The facts were these. On 1st August 1998, a car, registered in the name of the Appellant, was seen by a Traffic Warden outside No. 139 Connaught Road, Central, in an area where, by virtue of the laws regarding parking, only dropping off or picking up passengers, or loading or unloading goods were permitted on the basis that anything else would cause unnecessary obstruction to the road or danger to persons using that road.

2. The evidence led by the Prosecution came first from the Traffic Warden who said that on 1st August 1998, at about 10:20 in the morning, he was at the location and saw the vehicle stopped there. He approached vehicle FA4614, he said the driver was not in the vehicle but there was a passenger reading a newspaper. The doors were closed and the car was stationary. He issued a parking ticket in respect of the offence and placed it under the windscreen wiper of the car. He said that as he finished doing so, the driver arrived and had a conversation with him. There was no further evidence for the Prosecution.

3. The evidence for the Defence was given by the Appellant and a Mr Hui. It was the Appellant's evidence that he was in the car with Mr Hui at the place where the offence was said to have taken place. At the time when the vehicle was approached by the Traffic Warden, he said that he was picking up documents and returning documents to Mr Hui, which, he argues before me now, is tantamount to loading and unloading those documents. I cannot quarrel with that. He said that he was approached by the Traffic Warden and that the citation was written by the Warden. He takes issue with evidence from the warden as to the number of vehicles there and the period of time that they were there.

4. Mr Hui gave evidence which agreed with that of the Appellant. There were no inconsistencies between the evidence of the Appellant and Mr Hui, and cross-examination in no measure revoke his evidence.

5. The issue to be decided by the Magistrate was whether the evidence of the Traffic Warden was believable to a degree that, taking into consideration the evidence of Mr Wong, the Appellant and Mr Hui, he could be sure that the offence had been committed. In his Statement of Findings, the learned Magistrate said :

" No burden of proof rested upon the appellant but nevertheless having heard and seen him giving evidence I did not believe him. I did not believe the witness he called."

6. Where the evidence of an appellant in a court below and that of a witness or witnesses he called are attacked but remain intact, and where there are no inherent contradictions or inconsistencies either within that evidence or between the witnesses, it seems to me incumbent to some degree upon the learned Magistrate in his findings to give some reason why that evidence does not cast a doubt upon the evidence for the prosecution. I am well aware that it is very difficult for a magistrate at times to point to why he disbelieves a particular witness, but taking into account all that has happened in this case and all that I have seen and heard, I am of the view there is a doubt in respect of this offence. Given the nature of the approach by the Magistrate to his findings, this appeal is allowed and the sentence is set aside.