HKSAR v. NG WAI LUN

HCMA951/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.951 OF 2004

(ON APPEAL FROM KCS5197 OF 2004)

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J U D G M E N T

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1. The appellant was on 10 September 2004 convicted of failing to display a trade plate, i.e. failing to display a licence plate issued to the member of the motor vehicle trade to temporary license and insure a vehicle when it was being moved.  He was on the same day fined the sum of $2,000.

2. The facts were that on 12 December 2003, at a few minutes past midnight, the appellant was driving a car north along Tai Mong Tsai Road and it appears from the sketch that he went on to the wrong side of the road and had a head-on collision with the car southbound on the same roadway.  The driver of that car testified that he saw no trade plates at any time.  The magistrate found his evidence to be inconsistent and in respect of the issue of the presence or absence of trade plates said : “… I gave his evidence in that regard little weight.”

3. Police arrived at the scene some 20 minutes after the accident.  The first officer PW2 looked at the vehicle of the appellant and saw no trade plates attached to it and no trade plates inside the vehicle.  He agreed that he was unsure if the scene had been disturbed before his attendance.  He searched about six metres along the roadway each side of the accident and saw no plates.  The skid marks prior to the accident were a far greater distance than six metres.  He agreed that he could not see very far off the road on the verges, and onone side there was water and on the other side a steep rising incline.  He did not see any trade plates but he agreed that there was debris from the car flung a considerable distance. 

4. Evidence was given for the defence by the further of the appellant who owns a company selling motor cars.  He said the car was driven from his premises.  DW2 testified that when the car left the premises at about 8 p.m., the trade plates were fixed to the car.  It was not clear as to how the trade plates were fixed to the car, but in his findings the magistrate refers to the fact that the rear plate was fixed to the spoiler at the top of the back of the car by an elastic band.  The evidence of DW2 that the plates were on the car when it left the premises was accepted by the magistrate as the truth. 

5. The magistrate was therefore left with the position that when the vehicle left the premises at 8 o’clock, it had trade plates attached.  It was being taken to be considered for purchase by a purchaser at 11 o’clock at a carpark.  After the accident some 20 minutes elapsed before the police arrived and the vehicles were not secured during that period and were open to other persons not connected with the parties tampering with them.  He accepted that some parts of the vehicles had been flung from them and that no full search was made to ascertain whether the front and back plates were part of those pieces of the vehicle.  He said this :

“Having considered all the facts that I found, and the admitted facts by which I was bound, I found that there was only one inference that could drawn from those facts, namely that the defendant was not in possession of the T-plates at the material time and place, as alleged in the summons.  Any other inferences were pure speculation and unreasonable.  What had happened to the T-plates between 8 pm and the accident was not a matter that the court had to address.  I found it proven beyond any reasonable doubt that the defendant was a driver of a car at the material time and place and that he failed to display a trade plate T8119 on the front and back of it as required, as alleged.”

6. I do not agree that the inference drawn by the magistrate was the only reasonable inference.  There was insufficient primary evidence upon which he could come to that conclusion. 

7. In my view, there must have a doubt in respect of this conviction and the appeal will be allowed, the conviction will be quashed and the sentence set aside.