HKSAR v. KWOK TIN FOOK

HCMA1090/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1090 OF 2006

(ON APPEAL FROM ESV 68 OF 2006)

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JUDGMENT

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1. The appellant was convicted by a magistrate of the offence of using a mobile telephone while driving his private car on Wong Chuk Hang Road near its junction with Ocean Park Road.  The appellant who was a medical doctor appeared in person to argue his appeal against conviction.  Basically, he was saying he was a doctor and if he did not feel so strongly about the conviction, he would not have pleaded not guilty and after conviction, lodging an appeal.  The total fine including costs was $1,700.  He said he had not committed the offence.  He said the police officer concerned had made a mistake in his evidence that he had seen the appellant holding a mobile phone to his left ear while driving and was appearing to be talking on the phone.  He brought to court a mobile phone attached to an ear plug and said that was what he was using when talking on the phone and that was what the police officer should have seen.  Indeed, when the police officer finally stopped the appellant after signalling to him to follow him (the police officer), that was what he saw was in the appellant’s left ear — an ear plug attached to a mobile phone.

2. Ms Wan’s short reply was that there was a time gap between the police officer telling or signalling to the appellant to follow him and when the appellant actually stopped his car behind the police officer at a bend on the road.  The appellant when questioned by me admitted in his reply that it was possible for him to insert the ear plug into his ear after he was seen by the police officer using a mobile phone but said it would have been difficult, bearing in mind that he was driving during this time.

3. I called for the tape of the evidence of the police officer and that of the appellant and listened to it.  After listening to the evidence, I did not find any features of the police officer’s evidence which caused me to have any doubts about the truthfulness and reliability of his evidence.  I have to bear in mind that the magistrate not only listened to the evidence but was able to observe the manner in which the police officer and the appellant gave their evidence.  She came to the conclusion that the police officer was an honest, reliable witness.  She found his evidence was direct, clear and narrated in detail what happened during the incident.  On the other hand, she found the appellant to be quibbling and did not tell the truth in his evidence.  The magistrate concluded that she was satisfied beyond a reasonable doubt that the appellant did commit the offence charged.  There is no legal basis for this court to interfere with that finding by the magistrate.  The appeal against conviction is dismissed.