HKSAR v. LI SEE MING ALVIN

HCMA 1120/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1120 OF 2001

(ON APPEAL FROM KCS 900001/2001)

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J U D G M E N T

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1. This application this morning by the Appellant in person is for a certificate to appeal to the Court of Final Appeal on the ground that there is a question of great and general public importance.

2. The facts are the Appellant was convicted in the Magistrate's Court of the charge of knowingly making a false statement when he supplied particulars required from him pursuant to s.63(1) of the Road Traffic Ordinance, Cap. 374. He had stated in that statement that his vehicle, bearing registration number HF 1865, was parked at the public carpark at Yuen Wo Road near the fire station at 3:22 p.m. on 2 October 2000.

3. The Appellant's appeal from the Magistrate's conviction was dismissed by me and the Appellant now raises basically three points in support of his application for leave today. First is that the learned Magistrate in convicting the Appellant did not properly take into account the requirement under the case of R v. Browning [1992] Vol. 94 Criminal Appeal Report at page 109. The case of Browning referred to the identification of a motor vehicle and the Court of Appeal in England stated that the Turnbull direction was not required and that it was sufficient for the judge to direct the jury:-

(i) as to each witness's opportunity to identify the car;

(ii) as to each witness's knowledge of different types of cars; and

(iii) as to each witness' recollection of what he had seen rather than what information he might have absorbed from elsewhere.

4. This matter was not particularly canvassed on his appeal before me by Counsel representing the Appellant, the appeal before me focused on the fact that the Magistrate should have warned himself of the dangers of identification evidence as set down in Turnbull. When I dismissed the appeal, I have pointed out that the Turnbull direction was not required under this case of Browning.

5. The Appellant himself raised today before me that these requirements in Browning were not sufficiently considered by the learned Magistrate. It is clear from the Statement of Findings of the learned Magistrate that he was aware of the circumstances of the identification of the registration number of the car and he was well aware PW1's difficulties, in particular the speed of the car and PW1's visual deficiency. After considering all those matters, he decided that the PW1 and PW2 had sufficient opportunity to identify the car particularly the number.

6. As to each witness's knowledge of different types of cars, it is true that this was not brought up in PW1's evidence but PW1 was asked in chief if he knew the make of the car and his evidence was that it was an old Mercedes Benz. It is submitted by Counsel for the Respondent that the learned Magistrate dealt with this at paragraph 5 of his Statement of Findings where he mentioned that both witnesses were consistent as to "型號" of the car. Counsel for the Respondent also suggested that as far as her instructions are concerned, PW2 also gave evidence that the car was a Mercedes Benz. That part of the transcript of the evidence of PW2 is not available to this Court as it was not asked for, but Counsel relies on the fact that the learned Magistrate said that both witnesses were consistent on the "型號", thus that meant that PW2 must have given evidence similar to PW1. This is not disputed by the Appellant but the Appellant says that his understanding is that neither witness was actually asked about "型號" as meaning the model of the car. I disagree with the Appellant on that and I agree with Respondent's Counsel that "型號" can include the make of the car.

7. It is true that the witnesses' ability to differentiate between different types of cars was not brought up either in examination-in-chief or in cross-examination. The learned Magistrate, although he did not particularly refer to the case of Browning and it seems that he was not in fact even alerted to the requirements in Browning, nevertheless had in mind that both witnesses knew that the car in question was an old Mercedes Benz and they were consistent on that.

8. Thirdly, as far as Browning's third requirement is concerned about a witness's recollection of what he had seen rather than what information he might have absorbed from elsewhere, from the learned Magistrate's Statement of Findings, he went through each witness's evidence very carefully and he had brought up the fact that PW2 in her evidence had noted that she in fact was not entirely sure of the number herself but she needed that confirmation from PW1, so the Magistrate was well aware of all the circumstances leading up to both witnesses' identification of the number.

9. The Appellant also brought up the ground that the witnesses were inconsistent about the colour, one witness said it was blue green and other witness said it was blue grey. The fact is that the colour of the Appellant's car as disclosed in Exhibit P1 is blue. I do not find that when the witnesses said the shade is blue grey or blue green detracts from the fact that it is the basic colour blue. The Magistrate himself had noted this difference and decided at the end of the day that it was not important. So I do not consider therefore that the grounds as put forward by the Appellant is a question of great and general public importance.

10. As to the Appellant's other complaint under this application for leave, although it is not strictly a ground that he had forwarded, I will deal with here is that, the Appellant complained that the Magistrate was wrong to say that he knowingly made a false statement because he, in the information he supplied to the police, he had said that his car was parked in the carpark at the relevant time. The Appellant mentioned the fact that somebody else could have driven the car from the carpark etc., but the fact of the matter is that, the learned Magistrate found that the car was not in the carpark at the material time but was at the scene where PW1 said it was. There was no other evidence before the Magistrate except the evidence from the prosecution witnesses.

11. The Appellant also complained that the Magistrate did not accept the veracity of his record of interview which was produced as Exhibit P11, in that it was an exculpatory statement. The learned Magistrate had properly considered the statement and did not place any weight on it because he properly said that it had not been tested in cross-examination so he placed no weight on that. The Appellant said that that is not fair to him. But this, as I have explained to the Appellant, is the law and the Magistrate is perfectly entitled to reject relying on that document when it is an exculpatory statement and it had not been tested in cross-examination.

12. At the end of the day, the Magistrate concluded at paragraphs 11 and 12 of the Statement of Findings that the only irresistible inference he could draw from all the evidence before him was that the Appellant had made a false statement. He was entitled to do so from all the circumstances of the case and I therefore do not feel that there is a ground of great and general public importance for leave to appeal to the Court of Final Appeal and so the application is rejected.