HKSAR v. WONG WAH HUNG

HCMA663/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.663 OF 2000

(ON APPEAL FROM TWS 19679 OF 1999)

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J U D G M E N T

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1. The appellant was summonsed for the offence of careless driving. The information alleged that the appellant on 3 July 1999 at about 9:30 p.m., at Miu Kong Street near Lamp Post W1967-7 did drive a taxi (FA 9575) on a road carelessly. The appellant pleaded not guilty and was convicted after trial.

2. The prosecution case was rather straightforward. PW1, the only prosecution witness in the trial, was driving his police motorcycle at the material time in the 2nd lane of Miu Kong Road. The appellant was driving his taxi in the 2nd lane, about 5 metres ahead of the police motorcycle. The speed of both vehicles were about 40 kph. According to PW1, the appellant's taxi had suddenly cut into the 2nd lane from the 1st lane. As a result, PW1 had to take action to avoid a collision. PW1 testified that the 1st lane could only turn left into Shing Mun Road.

3. The appellant had also given evidence at the trial. What he said was that the police officer was lying in his testimony. The appellant gave an account that there was almost a serious accident between his taxi and PW1's motorcycle which had taken place at the previous road junction. And that was due to PW1's bad driving manner. The appellant also gave a different version as to how he was stopped by PW1 at the scene.

4. Having considered the relevant evidence in her Statement of Findings, the learned magistrate stated the following findings based on which she found the conviction proved :

"In relation to the criticisms made of PW1's evidence by the Appellant in relation to his earlier evidence, it cannot be expected that evidence will come out in exactly the same way every time it is given. It often depends very much on the manner in which the questions are couched, and the evidence it follows. I did not find that the evidence in the previous hearings was in any way at variance with the evidence PW1 had given before me. There were slight discrepancies, in particular, as to distance, which are not unusual as they tend to be estimates. They in no way affected the required standard of proof. I found PW1 to be a truthful and honest witness. I totally rejected the Appellant's evidence. I found him to be a dishonest witness. I was satisfied that the Appellant cut in front of PW1's motorcycle, as a result of which a collision was only avoided by PW1's actions. I found the summons of careless driving proved beyond all reasonable doubt and so that I was sure and I convicted him accordingly."

5. In relation to the conviction, counsel for the appellant had raised three main grounds of appeal. They were :

(1) At the conclusion of the case for the prosecution the appellant elected not to give evidence. Thereafter the learned magistrate put improper pressure on the appellant to give evidence on his own behalf. On three occasions the appellant intimated to the learned magistrate his election not to give evidence but she continued repeatedly to urge the appellant to give evidence. In the circumstances, the learned magistrate gave the impression that she had already formed a favourable impression of the credibility of PW1. Accordingly the conviction is unsafe and unsatisfactory.

(2) PW1 (PC 48207) gave evidence under oath on three separate occasions in relation to this matter. The alleged offence was said its have taken place on 3 July 1999. There were material discrepancies contained in the various versions given by PW1 in evidence. The final occasion was during the trial on 14 June 2000. The learned magistrate failed or failed adequately to resolve these discrepancies. The conviction is unsafe and unsatisfactory.

(3) The learned magistrate failed, or failed, adequately to evaluate the appellant's evidence. The learned magistrate failed or failed adequately to give reasons as to why she found the appellant "to be a dishonest witness". As stated in ground 1 at the conclusion of the case for the prosecution, by her conduct, the learned magistrate indicated that she had already made up her mind on the issue of PW1's credibility. Accordingly the conviction is unsafe and unsatisfactory.

6. Having heard the submissions, I had adjourned the case for deliberation mainly in view of the first ground of complaint. I had taken time to read through the transcript and considered the submissions with care. I came to the conclusion that despite the very able submissions advanced by Mr Stirling, I was not persuaded that there was any merit in this ground.

7. In fact, the focus of the oral submission regarding this ground of appeal was somewhat different from the written ground. In the written ground, it was argued that what the learned magistrate had said after the close of the prosecution case gave the impression that she had already formed a favourable impression regarding the credibility of PW1. I could not see any basis for this. If indeed that was the case, there was really no point for the learned magistrate to go through the trouble of inviting the appellant to consider giving evidence in the witness box.

8. On the other hand, in his oral submission, counsel stressed the issue of the onus of proof. He argued that the "yes you do" reply from the bench against the appellant's remark, that "I think there is no need (to give evidence) because he (PW1) was inventing stories only. I have no need to rebut his evidence", showed that the magistrate had misunderstood the onus of proof. Counsel said that there was actually no onus on the appellant to prove anything. Rebuttal evidence, if any is required, could have come from the prosecution case itself.

9. In order to understand what had transpired at this stage of the trial, it would be necessary to go to the record. According to the transcript, after the close of the prosecution case, there was the following exchange between the bench and the appellant :

"COURT: Yes, all right. At this stage, it's now for you to decide whether or not you wish to give evidence on your own behalf. There is no obligation on you to give evidence on your own behalf. You're entitled, as of right, to remain silent. And, whether or not you give evidence on your own behalf, you are entitled to call any witnesses. But, before you decide whether or not you wish to give evidence or remain silent, you must bear in mind that I have to determine the case on what I hear in court which is told to me under oath or affirmation. Do you understand?

DEFENDANT: I understand.

COURT: Do you wish to give evidence or not?

DEFENDANT: I think there is no need because he was inventing stories only. I have no need to rebut his evidence.

COURT: Yes, you do.

DEFENDANT: If your Worship think that I need to give evidence, I have to do so, but it's my election not to give evidence.

COURT: It's up to you whether or not you give evidence or not. You don't have to but you can if you want.

DEFENDANT: (Chinese) ...

COURT: Can you wait a minute? I have heard the evidence of PW1. His is the only evidence before me. I have to determine the evidence on the case that - I have to determine the case on the evidence I hear - that is what is told to me under oath or affirmation. If you wish to tell me what you say in fact happened, then you should seriously consider giving your evidence on oath or affirmation. Do you understand?

DEFENDANT: Understand. What I want to tell your Worship is that I want your Worship to compare the evidence of the first court hearing and the second court hearing before you make any decision.

COURT: I will. I have heard it. I haven't decided the case yet. Now is your opportunity to tell me your version if you wish to do so.

DEFENDANT: Then I will take the affirmation."

10. It is trite law that as a matter of principle, a defendant need not proof anything at his trial, the prosecution bears the burden of proof throughout the trial, and if rebuttal evidence is required, it can come from the prosecution case itself. Hence, I agree with counsel's submission in this regard.

11. Furthermore, I have to accept that on the face of it, the magistrate's comment of "yes, you do" could cause misunderstanding. But her words must be understood in their proper context. What the appellant said at the time was not simply that he had no need to rebut the prosecutions evidence, but that he thought so because PW1 was inventing stories only. That tend to suggest that his election to remain silent was based on his subjective view about the testimony of PW1. As the credibility of PW1 was not to be resolved at that stage, any responsible magistrate would be concerned about a possible misconception on the part of the defendant. The trial magistrate then took time to explain further to the appellant as revealed in the transcript. She had emphasized that if the appellant wish to tell the court what he said had happened, then he should seriously consider giving his version on oath. In view of what had been put to PW1 by the appellant in the cross-examination, the learned magistrate was being fair to the appellant to invite him to seriously consider to confirm his allegations on oath. It was after the explanation that the appellant decided to give evidence.

12. When the appellant had finished his testimony, the magistrate even found it necessary recall PW1 to be further cross-examined by the appellant because certain aspect of the defence case had never been adequately put to PW1. Here the learned magistrate had adopted a cautious and fair approach in guiding the course of the trial and the appellant was given full opportunity to properly bring out all the relevant issues before the court. I was not satisfied that when the learned magistrate said "yes you do", it illustrated a case of ignorance about the basic principle of onus of proof. The trial magistrate is a very experienced magistrate.

13. In her Statement of Findings, the magistrate had specifically dealt with this particular matter. She stated that :

"... Initially he had stated that there was no need for him so to do because he had put it in his questions. I explain that I had to determine the case on the evidence I heard and if he wished me to take into account his version he should consider giving evidence, but he was entitled to remain silent. He then elected to give evidence. ..."

14. I have also read the transcript where the oral judgment is recorded. I could find no indication that the learned magistrate had wrongly applied the onus of proof. The "yes you do" was at most a slip and if indeed it had created some sort of misunderstanding, the magistrate's further explanation to the appellant had effectively clarified the position. It was not a case where the learned magistrate's remarks had somehow prevented a defendant from giving evidence. I would be much more concerned in such a situation. Here, even if the appellant had misunderstood the explanation and had elected to testify on the wrong basis, I could see no prejudice against him as a result. Although the magistrate had disbelieved the appellant, she had, as was required of her, proceeded to look at the prosecution case on its own to decide whether the prosecution had proved the offence to the required standard.

15. The third ground of appeal was a complaint that the learned magistrate had not given her reason as to why she found the appellant to be a dishonest witness. It was true that the learned magistrate did not elaborate on why she did not believe the appellant, and I would agree that some reason would be desirable as to why the appellant was not believed. But in a relatively simple case like the present one, I doubt she was required to say more in the circumstances, having seen and heard the only two witnesses in the trial.

16. As to the second ground, the learned magistrate was apparently aware of the discrepancies raised. Again, although the learned magistrate did not elaborate further on the matter, she did come to the conclusion that they were slight discrepancies only. I would not be in a position to disagree with her view.

17. All in all, having considered the submissions, the Statement of Findings and the transcript of the trial, I found no valid reason to disturb the conviction. Despite Mr Stirling's forceful submissions, I have to agree with the respondent and that this appeal must be dismissed.