HKSAR v. POON KWOK KIT

HCMA 111/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 111 OF 2016

(ON APPEAL FROM KTCC 3022/2015)

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R E A S O N S   F O R   J U D G M E N T

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1. The appellant was convicted after trial of two offences which were (1) driving while disqualified; and (2) using a motor vehicle without third party insurance. He appealed against both conviction and sentence. However, prior to the hearing of his appeal, he had abandoned his appeal against sentence.

Prosecution Case

2. It was not disputed that the appellant was the registered owner of the vehicle involved in this case and that the appellant had been disqualified from driving from 20 November 2014 to 19 May 2015 and therefore there would not be any the third party insurance for the subject vehicle as the driver did not have a valid licence.  Also undisputed with that the appellant was a serving police officer with a warrant card.  He was on duty in the Reporting Centre in Shek Kip Mei from 14:30 hours on 7 January 2015 to 00:06 hours on 8 January 2015.  It was also not in dispute that the appellant had obtained an Autotoll Tag for the vehicle on 28 August 2013 and loss was reported for the Autotoll Tag on 29 January 2015.

3. Apart from two prosecution witnesses, the prosecution also produced by consent the CCTV footages of the Reporting Centre together with layout plans, photos, event log reports of the Automated Station Security System (ASSS) of the Autotoll Tag and the warrant card.

4. PW1 was Sergeant 6544, Mr Cheng Chun Yuen.  His testimony was made up entirely of what he observed from the CCTV footages.  PW2, Senior Inspector Lau Ka Hang, gave evidence that the appellant was his subordinate at the material time and that the appellant had applied for and was granted a parking permit in the Shek Kip Mei Police Station and the Autotoll Tag was verified.  He said the Autotoll Tag had to be installed in the vehicle and is non-transferable.  The sensor at the Reporting Centre gate would detect the autotoll box installed on the vehicle and the gate would open.

5. The appellant elected not to give evidence nor call any witnesses.

Magistrate's findings

6. The learned magistrate after reminding herself particularly of the appellant's good character then concluded that both prosecution witnesses were honest and reliable witnesses and particularly PW1's evidence was supported by the CCTV footages and documentary exhibits (see paragraph 16 of the Statement of Findings), this was hardly surprising as PW1 was giving evidence as to what he saw on the CCTV footages.

7. The learned magistrate separated the event into two time frames.  The first time frame was between 00:09:50 to 00:12:43 and the second time frame that happened between 14:18 to 14:21.

8. For the first time frame, the learned magistrate held that the only person seen alighting from the vehicle in dark clothing from the driver's seat and was seen less than a minute later activating the pedestrian gate.  She concluded that in that time frame, it was difficult for two persons to change their appearances and clothing, so her only conclusion was that the man in the dark clothing was the driver.  Further, she considered that since there was no loss report of the appellant's warrant card and the appellant's car had the non-transferable Autotoll Tag and the tag was not reported lost until 29 January 2015, so she concluded that the car bearing the Autotoll Tag could not have been driven by a different person than the person who used the appellant's warrant card to leave the gate.  Therefore, the learned magistrate held that her only conclusion was that the appellant was the driver of the car in the first time frame.

9. As for the second time frame, the appellant was seen returning to the Reporting Centre on foot shortly after the vehicle left the Reporting Centre, therefore, the learned magistrate concluded that the appellant was the driver of the vehicle within the second time frame.  Finally the learned magistrate concluded that as the appellant was a serving police officer, he knew that the insurance policy would not be effective while he was driving while disqualified and therefore she also concluded that he was driving while disqualified knowing that there was no insurance coverage.

Appeal

10. Mr Li on behalf of the appellant submitted three grounds of appeal against conviction:

(1) amended charge 21 and amended charge 22 are duplicitous in nature for each of them contains two distinct incidents and hence two offences;

(2) the learned magistrate erred in relying on the evidence of PW1 for PW1's evidence was either his opinion on the evidence already adduced and/or his investigation result; and

(3) in finding one of the persons appeared in the CCTV footages (P4 and P5) was the person purported to be referred to in the event log report (P9), and hence was the appellant, the learned magistrate committed the following errors:

a. the prosecution led no evidence that the time and/or date purported to be shown by the CCTV footages (P4 and P5) could match or be synchronised with the time and/or date purported to be shown in the event log reports (P8 and P9).

b. erred in finding the persons appeared in the CCTV footages on different occasions were the same person when the quality of the CCTV footages were inferior and unclear.

c. erred in finding the persons in similar clothing or appearance were the same person and also the driver of the vehicle when the CCTV footages did not show the whole of alleged place of incident.

Duplicity

11. As Mr Li submitted, it is trite that a count in an indictment should only charge the defendant with having committed one offence.  If a count in an indictment alleges more than one offence against the defendant, it would be bad for duplicity.  It boils down to the issue of fairness, that a defendant should know exactly what charge he is facing.  Lord Morris of Borth-y-Gest said in DPP v Merriman [1973] AC 584 at p 593:

". . . the question of duplicity in a charge arises where the conduct alleged in the charge involves a number of acts each of which is capable of being treated as a separate breach of the law".

12. As the Court of Final Appeal in HKSAR v Chim Hon Man (1999) 2 HKCFAR 145 at p 159-162 observed:

". . . in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence as described in the charge and invite the jury to convict on any one of them. . . .

 . . . Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence . . . he may have to the offence charged and to subject a complainant's evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, . . . "

13. As Mr Li submitted in the present case, the appellant was originally charged with 22 counts before the learned magistrate but at the beginning of trial, the prosecution had withdrawn the counts and submitted two amended charges, the original charges 19 and 20 and charges 21 and 22 were concerned with the events that took place on 7 January 2015.  The amended charges that the appellant faced only specified the date of the offence but not the time.

14. As Mr Li correctly pointed out the first set of incident which the learned magistrate referred to as the first time frame incident covered the appellant's driving from around 00:09:31 to 00:11:53 on 7 January 2015 while the second set of incident referred to as the second time frame by the learned magistrate was between 14:18 to 14:21 also on 7 January 2015, the time between both incidents were over 14 hours, so it was not a case of a continuous driving during those times because the vehicle was stationary between those two time frames.  It was admitted by the appellant at trial that he was on duty from 14:30 on 7 January 2015 to 00:06 on 8 January 2015, there was no admission by the appellant concerning the first time frame.

15. In response Mr Brook does not take issue with the law as submitted by Mr Li but he pointed out that all the relevant material was before the defence and there was no opening speech made by prosecuting counsel and the issue of duplicity was never raised before the learned magistrate but, of course, as Mr Brook had to admit that does not preclude the appellant from raising the matter now.  Mr Brook submitted that the learned magistrate had found on the facts that it was the appellant driving on both occasions and the learned magistrate had come to that conclusion independent of the other evidence in the different time frames.  I disagree. The law on duplicity makes it quite clear that even if there is ample evidence to support a finding of several offences within the charge, it is still a charge that is bad for duplicity if the charge encompasses more than one incident. Mr Brook in a last-ditch attempt then invited this court to use its power under section 119(d), (e) and (g) of the Magistrates Ordinance to uphold of the conviction in a way as it "thinks just".

16. It is quite clear that the charge was indeed bad for duplicity and though neither counsel had referred the learned magistrate to that matter, the learned magistrate should have raised it herself.  In this case, the duplicity question is more obvious as the prosecution had sought to withdraw the original four charges and consolidated them into two amended charges.

17. I also decline the invitation of the prosecution to use my power under the Magistrates Ordinance to convict the appellant of the charges in a "just" manner as it would be inimical to the rule on fairness.  I do not need to consider the other grounds of appeal in the circumstances, so the appeal was allowed on ground one.

18. Mr Brook has indicated that he would wish to submit that this court should send the case back to the magistrate's court for a trial de novo.  I will deal with that once counsel are ready with their arguments.