R. v. AU YEUNG TEI HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1014 OF 1996

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J U D G M E N T

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1. Two uniform police officers (PW1 and PW2) were on duty on 8th July 1995 along King's Road, North Point. They noticed a private car being driven into a taxi stand and it parked there. They saw a man come out from the driver's door. He went into a shop. They saw a child passenger in the car. Then a man came to the car from the shop. PW1 said to the man that he could not park there. The man said he knew but he only parked for a few minutes and would leave. PW1 then asked for his driving licence which he found he did not have with him. There was some argument between the officers and this man. The prosecution evidence was that the man pointed to PW2 and said "Stinking new boy". PW1 also said that his man said he was CSD Senior Officer. PW2 told the magistrate that he saw the car driven into the stand. Later he asked the passenger child where the driver was. When that man came out PW2 asked him if he was the driver. That man said he was and he was about to leave. He also said this man asked for a chance. When the man could not produce his driving licence, there was a check made to the console. In the meantime, there were arguments between the officers and this man. PW2 told the magistrate that that man said to him "Stinking new boy" and told him that he was a CSD officer and knew many police officers. PW2 accepted that such allegations he made against that man were not recorded in his note book nor in his witness statement. But he denied that these were made up by him.

2. There was no dispute that this man was the Appellant. The Appellant did not give evidence but he called his wife and daughter to testify that the Appellant was not the driver who parked the car in the taxi stand.

3. The magistrate did not accept the Appellant's case and convicted the Appellant of two offences : failing to carry driving licence and parking at a taxi stand.

4. The Appellant now appealed against conviction.

5. The complaint was that the magistrate relied on the admission that he was driver of the car made by the Appellant when he approached the car but the magistrate had failed to consider that both officers had claimed to have spoken to the Appellant at the same time. It was inherently improbable for them to obtain the admission at the same time and this cast doubt on their credibility.

6. Complaint was also made that the magistrate did not resolve this significant inconsistency between the evidence of PW1 and PW2 which he was obliged to do. Further it was complained that the evidence of PW2 was full of inconsistencies and therefore unreliable for the magistrate to accept. The conviction was unsafe and unsatisfactory.

7. The magistrate in his statement of findings said he accepted the evidence of both PW1 and PW2. He said :

"I accept that no one actually saw the Appellant actually driving the car but I accept that he did say that he just parked there for a few minutes and was going to leave. I have no doubt that the car was parked in the taxi stand unlawfully and it was driven by him."

8. On PW2, the magistrate said :

"PW2's evidence did give rise to some concern but I accept that he was on trial beat at the time and that he was open as to his lack of experience and did not evade questions. His credibility was not in doubt."

9. The magistrate had analysed the evidence of the prosecution and defence. He found there was no inconsistency between the evidence of PW1 and PW2.

10. It is not inherently improbable that PW1 and PW2 were speaking to the Appellant at the same time as he approached the car. They were talking to the Appellant in different context of the incident. PW2's evidence appeared to be inconsistent with his previous statements which did not record his allegations of the Appellant saying that he (PW2) was stinking new boy and claiming that he (the Appellant) was senior CSD officer. These inconsistencies go to his credibility. The magistrate, as demonstrated from what he said in his statement of finding, was aware of these inconsistencies which had been amply ventilated before him.

11. R. v. Lam Kam Ming, Cr. App. 607/79 required an analysis of the evidence by a magistrate. But it also held that it would be sufficient if the reasons were given in a manner appropriate to the circumstances of the case, otherwise the salient points in the case demonstrated that the evidence has been evaluated.

12. The magistrate in his statement of findings had set out and evaluated the evidence of this case. He was entitled to decide that PW2 was still reliable notwithstanding the inconsistencies between his evidence and his previous statements. The magistrate was the best person to assess the evidence and to decide whether to believe the evidence of the Appellant's wife and daughter.

13. The evidence which the magistrate accepted supported his findings and the conviction cannot be regarded as unsafe or unsatisfactory.

14. The appeal against conviction is dismissed.