HKSAR v. BAILEY LEONIZA R.

HCMA774/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 774 OF 2007

 (ON APPEAL FROM ESS 39961 OF 2006)

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J U D G M E N T

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1. This is an appeal against the conviction by a Magistrate of the Appellant on a charge of careless driving for which the Appellant was fined $1,600. 

2. The sole ground of appeal advanced by Mr Boyton is that the Appellant should not have been convicted as there was on the evidence a doubt as to whether she was properly warned that she would be prosecuted for careless driving pursuant to section 68 of the Road Traffic Ordinance, Cap. 374 (“the Ordinance”)  

3. Mr Boyton who appears on this appeal with Mr Niehorster very properly did not challenge the Magistrate’s finding that the police officer who gave evidence at the trial was an honest and reliable witness.  What Counsel says is that on the evidence there was a doubt as to whether the Appellant who is a Filipino in fact understood what was said to her by the police officer.  The police officer who gave his evidence in Cantonese had testified that from a position that he was in, he witnessed a near collision between two cars going down Garden Road, after which he stopped the Appellant’s car and the other car involved.  He was asked what dialect he spoke to the Appellant in and he said he used simple English but he added that his English was not very good.  He said that the Appellant said words to the effect that the vehicle behind her was driving at a high speed.  He then said that he said to her in simple English :

“As you saw that he was driving in such a high speed, why did you still come out?”

This was a reference to the Appellant coming out of St. Joseph’s Church onto Garden Road onto the path of the other vehicle.  Then the police officer said that she then said something in English which he was not quite sure about.  He said that he then told her that he would later prosecute her for careless driving.  He said he spoke in very simple English.  He was asked what the response of the Appellant was and he said “She said something but I didn’t understand”. 

4. I should add that the trial before the Magistrate was conducted in English but when the Appellant gave evidence she gave it in Tagalog.  In Court today she is assisted by a Tagalog interpreter and quite clearly English is not her mother tongue but a second language to her.  Mr Boyton also refers to and relies upon article 11(2)(b) of the Hong Kong Bill of Rights Ordinance, Cap. 383 which says :

“(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality—

(a)   to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; …”

5. Mr Boyton submits that there must be a doubt as regards whether the Appellant in fact understood the warning given to her by the police officer.  He relies on the English case of Bentley v. Dickinson [1983] Crim.L.R. 403 where the Divisional Court in England held that the mischief to which section 179(2) of the Road Traffic Act 1972 which is in very similar terms to our section 68, of the Ordinance :

“… the mischief to which section 179(2) was directed was that motorists were entitled to have it brought to their attention at a relatively early stage that there was likely to be a prosecution so that they could recall and if necessary record the facts as they occurred at the time. …”

The court also held that :

“…If there was room for doubt, the court should lean towards protecting the subject rather than dealing with the mischief. …”

6. Now, in reply, Mr Liu for the Respondent relies on the English case of Offen v. Ranson [1980] RTR 484 where the court held that simply for the defendant to raise a doubt in the mind of the justices was not enough and that the defendant had to discharge the onus, which was upon him, and this is a reference to section 179(3) which is similar to our section 68(3) which says that the requirements of subsection (1) which is a reference to warning the defendant of the possibility of a prosecution, “shall in every case be presumed to have been complied with unless and until the contrary is proved”.  So in that case it was held that the defendant had to satisfy the justices that he probably did not hear the warning. 

7. In this particular case, the Magistrate did find that the police officer was an honest and reliable witness and she did find that the Appellant who gave evidence was not a creditable witness, and she found that the Appellant had not told the court the truth of the events which occurred that morning. 

8. The Appellant had given evidence that at the scene she only learnt from the police officer that someone had accused her of driving carelessly.  She said that she was never told that she might be prosecuted for careless driving and she only became aware of that when she received the summons in January 2007.  She then posted a notice which she produced as Exhibit D4, at the entrance of St Joseph’s Church around 7 January 2007 requesting for assistance, namely for any witnesses who witnessed the incident to come forward.  And she further said that if she had been informed by the police officer that she might be prosecuted for careless driving she would have returned to St Joseph’s Church that same day to locate any possible witnesses. 

9. Given that there was a possibility that the Appellant did not understand what the police officer was saying to her, my view is that in this particular case the police should have sent her a written warning of the possibility of a prosecution, which the police could have done within 14 days from the day of the incident.  That would have removed all doubts about whether the Appellant understood what the police officer had said to her at the scene. 

10. It should be noted that the Magistrate in her findings found that the Appellant was warned at the scene that she might be prosecuted for careless driving.  But it is interesting to note, and I hope I am not being unfair to the Magistrate here that she then carried on to say :

“Even if the Appellant somehow misunderstood in what she might be charged with careless driving as related by PW1 at the scene, I do not find she had been prejudiced in her defence by not being served with written notice of the intended prosecution by judging from all the facts in this case.”

11. Mr Boyton submits that perhaps despite her finding, the Magistrate might have had a lurking doubt about whether the Appellant in fact understood what was said to her by the police officer which is why she carried on to make the second finding that even if that were so the Appellant had not been prejudiced. 

12. Prejudice comes into play because section 68(2) says that :

“Subsection (1) shall not apply if it appears to the court or magistrate that—

(a)   the person prosecuted was not prejudiced in his defence by a failure to comply with that subsection; …”

13. The Magistrate did not give any reasons why she found that the Appellant had not been prejudiced in her defence.  With respect, quite clearly, the Appellant had been prejudiced because :

(a)      she apparently did not make a note of what had happened to help her to refresh her memory when the trial came along; and

(b)     because of the delay, she was unable to find any witnesses to testify on her behalf. 

14. Counsel tells me from the Bar table that it was a Sunday and there were a lot of people leaving the church at the same time, so possibly there might have been witnesses to the incident. 

15. I find, despite the very persuasive submission by Mr Liu, that there is a doubt about whether the Appellant understood what the police officer was saying to her at the scene, and I find that the Appellant had been prejudiced in her defence.  Accordingly, I allow the appeal and I quash the conviction.