HKSAR v. LUI WING WA

HCMA388/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 388 OF 1999

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J U D G M E N T

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1. This is an appeal against conviction.

2. The Appellant was convicted by a Magistrate in Kwun Tong Magistracy on 12 March 1999 of the offence commonly known as "jay walking", in that at 6:32 p.m. on 14 November 1997, at the junction of Mut Wah Street with Hip Wo Street, being a pedestrian, he did, without reasonable excuse, cross a road within 15 metres of a light signal crossing otherwise than at the crossing where such lights operated, contrary to regulations 39(a)(ii) and 61(2) of the Road Traffic (Traffic Control) Regulation, Cap.347.

3. Only one witness gave evidence for the prosecution. PW1 was a traffic warden at the material time positioned on a safety island situated in about the middle of the junction. Three roads and a bus terminus converged on that junction. He was keeping watch on the pedestrian crossing named in the charge to see if anyone cross without using the crossing. He saw the Appellant cross the road six to seven metres away from the pedestrian crossing. At the time the Appellant got past the safety island in the middle of the road, PW1 told him to come back to the safety island. PW1 put the allegation to him and took his particulars, i.e. the name, identity card number and address, and these particulars were recorded in PW1's notebook. The Appellant replied that he was in a hurry.

4. PW1 could not recognise the Appellant at the trial as the event happened quite some time ago. PW1 produced his notebook as Exhibit P2 on which the Appellant's particulars were recorded. PW1 had also prepared a sketch of the incident, Exhibit P1, and at the time it was prepared the matter was fresh in his mind.

5. The Appellant gave evidence before the Magistrate to tell him that at the relevant date, time and place, he crossed the road by using the pedestrian crossing. At the safety island, someone who claimed to be a policeman asked for his identity card. His personal particulars were taken and he was let go. He did not know he would be prosecuted.

6. In his Statement of Findings, the Magistrate had the following to say :

" I had also heard and carefully considered the evidence of the appellant. I do not believe his version of events and reject it. I do not accept that he crossed at the designated pedestrian crossing. Some of what he said in the witness box was not put to PW1 in cross-examination. As I say I reject his evidence.

I am satisfied that the person that PW1 saw on this day was the appellant. He had at the relevant time taken the appellant's HKID card and wrote down full particulars from it. They are the particulars of the appellant, and I saw nothing sinister in the fact that PW1 could not positively identify the appellant in court some 16 months later. As I say I am sure it was the appellant.

The evidence on the whole here is clear cogent and compelling. The appellant being a pedestrian did cross the road within 15 metres of a light signal crossing otherwise than at the crossing where such lights operated. He did so without reasonable excuse. I find that all of the necessary elements have been made out beyond a reasonable doubt and I accordingly found the offence proved against the appellant."

7. In the grounds of appeal, the Appellant challenges the evidence of PW1 for its being inaccurate. The argument is that no matter whether PW1 was honest, accuracy of the evidence should be more important than honesty. For instance, the Appellant points out that PW1 did not have a clear recollection of his, i.e. the Appellant's face, and whether it was wet or muddy on the day in question. He also challenges that PW1 first said the entry in his notebook about the incident was made at 6:30 p.m. but immediately altered to say that it was 7:30 p.m.

8. All the matters mentioned by the Appellant and his grounds of appeal would at the most amount to minor discrepancies. In fact, according to the transcript, the Defendant's challenge as to the mentioning of 6:30 and 7:30 p.m. as the time for making the entry in the notebook is imprecise. The answer given by PW1 was : "The operation lasted till 6:30, so I recorded the matter after 6:30. Correction, 7:30."

9. The Magistrate did consider the discrepancies and he dealt with them in his findings as follows :

"Naturally because of the lapse of time there were some minor discrepancies, but none were such that would cause me to disbelieve him [PW1] in any way, shape or form. Here he is trying to recall in minute and precise detail an event that occurred six months previously."

10. The Magistrate had the benefit of observing both PW1 and the Appellant when they were giving evidence before him, which benefit I do not have. Having carefully considered the evidence of the Appellant, the Magistrate rejected his version of events. On the other hand, he found PW1 to be an honest and believable witness and accepted his evidence. The so-called discrepancies in PW1's evidence to which my attention has been directed by the Appellant do not give rise to any doubt that the evidence based on which the material elements of the charge were proved is inaccurate or incorrect. For instance, the Appellant attacks the distance between PW1 and him which was described by PW1 as 30 something metres, whereas the width of the road that the Appellant was crossing was 40 metres. PW1 was on the safety island situated at somewhere near the middle of the road junction. The Appellant's attack is based on the sketch, Exhibit P1, on which the positions of PW1 and him were drawn. When one examines the sketch, one cannot be sure whether the distance between the two persons was as wide as the road.

11. The Appellant also challenges that the Magistrate allowed the witness, i.e. PW1, to draw on the sketch to indicate the position of the vehicles that had stopped at the traffic lights, claiming that it was wrong for the Magistrate to allow amendment to the evidence. This ground is totally misconceived. It is not an amendment to the evidence, but allowing the evidence of PW1 to be given of what happened at the material time at the location shown on the sketch in a manner more accurately than mere oral description, and giving a clearer picture of what PW1 described to the court as well as to the Appellant.

12. All the matters drawn to my attention by the Appellant are but minor peripheral matters which are to be expected even from an utterly honest and reliable witness in a case where the trial of the testified events takes place over 16 months after they have occurred.

13. I am not able to find anything in the grounds of appeal, in the Appellant's address to me or in the whole of the record of this case that can fault the Magistrate's findings.

14. In the circumstances, I dismiss the appeal.