HKSAR v. CHUNG FOOK SUN

HCMA664/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 664 OF 1998

(On appeal from NKS983 OF 1998)

--------------

--------------

---------------

J U D G M E N T

---------------

1. The appellant, CHUNG Fook-sun, appeals his conviction on 19 June of last year by Mr Kevin Browne, Permanent Magistrate sitting at North Kowloon Magistracy, for an offence of Careless Driving. The learned magistrate sentenced the appellant to pay a fine of $700 and court costs of $300. The appellant does not appeal his sentences.

2. At trial, as in this appeal, the appellant represented himself. At trial, the appellant testified on his own behalf. He called no witnesses in his defence.

3. In brief, the prosecution case was that, on 7 December 1997, a police officer on motorcycle patrol in Reclamation Street in Kowloon at 5.35 in the morning stopped at a red traffic light which controlled the junction with Mong Kok Road. He observed the traffic lights for the east-bound traffic travelling along Mong Kok Road, he saw the lights change. Whilst the lights were on amber, he saw a public light bus drive through the junction. The traffic lights governing Reclamation Street changed to green, and the police officer and a light goods vehicle which was also on the road, moved out into the junction. Once the officer entered the junction, he saw the appellant's taxi being driven along the third lane of Mong Kok Road in a north-bound direction, at speed. Both the police officer and the light goods vehicle were forced to stop their vehicles in order to avoid a collision.

4. The officer told the learned magistrate that he got off his motorcycle and checked the traffic lights to confirm that they were working correctly. He got back onto his motorcycle and stopped the appellant's taxi further along Mong Kong Road, near to the junction with Portland Street.

5. At trial, the appellant put to the police officer that he had been driving slowly along Mong Kok Road at less than

5 kilometres an hour, following a public light bus. The police officer disagreed with that suggestion.

6. The appellant, in his defence, said that he had been following a public light bus along Mong Kok Road. He said that it stopped for a short moment, he followed it. He had driven slowly. At the junction with Reclamation Street, the lights were on green and he had followed the public light bus slowly across the junction.

7. The learned magistrate carefully considered all the evidence, both for the prosecution and for the defence. He was aware that the prosecution had to prove beyond reasonable doubt that the appellant had failed to exercise the degree of care and attention expected of a reasonable and prudent driver.

8. He did not believe the evidence of the defendant. He found it difficult to understand why at 5.35 in the morning a taxi driver would follow a public light bus for two minutes at a speed of only 5 kilometres an hour. The learned magistrate found the police officer to be a reliable and credible witness and accepted his version of the events. He was satisfied, beyond reasonable doubt, that the defendant had driven carelessly.

9. The appellant relies on the general grounds of appeal set out in his notice of appeal.

10. In his submissions before me this morning, he essentially repeats the defence he put forward at trial and further says that he was denied access to a lawyer. He says that he applied for legal aid and for some reason was refused it. I find that difficult to believe, as it is my understanding that legal aid is not available for road traffic offences, neither are the services of the Duty Lawyer Scheme made available for such offences.

11. As I have said, there were only two witnesses at trial - the appellant and the police officer - and this was a case that revolved around the credibility of the witnesses, both for the prosecution and the defence. The best person to resolve that issue is the learned trial magistrate. Indeed, he is the only person appointed to resolve these issues.

12. From his statement of findings, it is quite clear that the learned magistrate understood the evidence given before him and that he applied it correctly. He was aware, and he demonstrated so in his statement of findings, that, even though he disbelieved the appellant, the burden still lay on the prosecution to prove the appellant's guilt on the charge he faced. The learned magistrate had the advantage - the advantage, that I do not have, of having heard and seen the witnesses, including the appellant, give evidence.

13. There is nothing in his statement of findings that indicates that the learned magistrate's approach to the evidence, or to the case, was in any way in error. As I made clear to the appellant in my discussions with him, it is not for me to substitute any view I may have on reading the appeal bundle for the learned magistrate's view on the question of veracity of witnesses.

14. I am satisfied that the magistrate's conviction of the appellant on the charge of Careless Driving is unassailable on appeal, and therefore the appellant's appeal is dismissed.