ZHANG, BING XIAO YUAN ROBIN

HCMA 311/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 311 OF 2003

(ON APPEAL FROM KCV 266/2002)

HKSAR v. ZHANG, BING XIAO YUAN ROBIN

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J U D G M E N T

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1. This is an appeal against conviction for failing to comply with the indication given by a red light at the junction of Prince Edward Road West and Earl Street.

2. The prosecution's case relied on one police constable who had come down Earl Street on his motorbike. He was in the lane to turn left. As he looked into the main road in front of him, he saw a medium goods vehicle which was driven by this appellant go through, he says, a red light. Accordingly, he changed direction and stopped the lorry shortly beyond the lights and pointed out the offence to the driver. He said the reply given by the driver was that he was not attentive and thought it was a yellow light. When the appellant gave evidence below, he said the light was green and he never made that reply.

3. So the issue is one of credibility; which witness did the Magistrate believe. He believed the policeman. He pointed out in his statement of findings that that was not because the man was a policeman; he enjoyed no special status thereby. He believed the policeman because he found him to be a convincing witness. He clearly took the view, which I do, that in the absence of something to suggest a good reason why he would do it, it is not to be contemplated that he had invented this. So one is driven to assess the scope for mistake.

4. The magistrate found none. He pointed out that something made him divert from turning left to turning right to chase the medium goods vehicle; that there was nothing to obstruct his view of the light which was easily within the range of his visibility; and that he was a steady, sensible man, well-used to making observations and judging matters such as this, being a traffic police officer. He trusted that witness. Especially given the answer allegedly made by the driver that he was not attentive, one can see why the magistrate thought that there was scope for mistake by the driver. It seems to me that that reasoning which led to the conviction is convincing.

5. Not only that, the magistrate was much better placed to make the ultimate decision than I am today because he had the benefit of actually seeing and hearing the two parties before him. There is nothing in the facts before me, nor in the submissions made today by the appellant, that makes me doubt that the finding the magistrate made was in any way a wrong one.

6. Before the evidence was called below, the magistrate came to understand that the appellant had a passenger in his lorry, so the magistrate took the initiative to raise with the appellant whether he wanted that person to attend court as a witness. He stood the case down for the appellant to make a telephone call. The appellant rang his former employer who told him that the colleague had left the employment he had been in when he was sharing the lorry with him. The appellant then said he was content to proceed in the absence of the passenger who was in fact the vehicle attendant.

7. Today the appellant tells me that he has made inquiries and found out that what the employer told him was not true, that the vehicle attendant still works for the company. He thinks the employer merely did not want to lose his services whilst the witness came to court. He says that if he was given more time, he could get the witness to come to court. I will treat that as an application to call some fresh evidence.

8. It is an application I am bound to refuse because the magistrate gave the appellant ample scope to have the case adjourned for the attendance of the witness, and the appellant was happy to go on. But not only that, inquiry by me today of the appellant reveals that he does not know what the witness would say; he has not asked him whether he could remember the events in question; he does not know whether he was paying attention at the time and whether he saw what colour the light was.

9. Accordingly, the order I make today is to confirm the order made by the magistrate convicting the appellant.