R. v. LAU KWOK KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 771 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction. The appellant was convicted of using a motor vehicle when it was not so maintained, that so far as was reasonably practicable the products of combustion were not discharged on the road in such a manner so as to be likely to cause danger or annoyance to persons.

2. There were two prosecution witnesses. The first was a police officer; the other was a Transport Department motor vehicle examiner.

3. The police officer's evidence was that he and the examiner had established a temporary vehicle examination centre on 18th October 1995 on the Tai O Road. The appellant was driving his taxi there and was stopped.

4. The appellant was asked to depress the accelerator of the taxi, and there was emitted from the exhaust pipe what the officer described as "a large amount of black smoke". The examiner repeated the exercise with the same result. The examiner gave evidence before the magistrate to the same effect.

5. The defendant appeared before the magistrate unrepresented. He gave evidence. It was his case that only the examiner depressed the accelerator, and that there was but a small amount of black smoke, and not a large amount as was contended. He said that a photographer took a picture of the rear of the taxi. The appellant also gave evidence that the taxi had been examined by Crown Motors only days before, the implication being that it was most unlikely in those circumstances that the vehicle would be emitting an objectionable amount of smoke a few days later.

6. The magistrate convicted the defendant. She found that the taxi emitted "excessive black smoke" during the tests. It was a question of who she believed, and she believed the prosecution witnesses and not the appellant. The appellant was fined $1,500 and ordered to pay costs in the sum of $500.

7. The appellant has made a number of points in support of his appeal against conviction. He said the vehicle was new and had only a few days before been subjected to a maintenance check, and he produced a certificate to support that contention. Most particularly, however, he said that he had asked the examiner that a photograph be taken of the smoke emission, so certain was he that the suggestion of excessive smoke was at fault. The photographs were not produced at trial, he complained, and although he asked for an adjournment for that purpose, the adjournment was refused. He contends that that refusal was unjust.

8. If photographs were taken, they would clearly have been relevant. The appellant asserted before me that an adjournment was at first agreed, but that then the magistrate said that it was unnecessary. The record of proceedings does not show any request for an adjournment for the photographs to be produced. I was told by counsel for the Crown when this appeal first came before me on 20th August that according to his information there had been a problem with the development of the photograph. I thought it right to ascertain whether there had been a request for an adjournment, and what precisely had transpired in this connection. I therefore adjourned the hearing of the appeal part heard, and the learned magistrate and the prosecutor at trial were asked if they could assist.

9. The magistrate has informed this court that the examiner did indeed say that he had taken photographs, but had said that "there were over thousands of photographs of these sorts, they were not marked and he might have difficulty to locate them. I therefore decided not to adjourn the trial and proceeded with it."

10. The court prosecutor recalls that the appellant indeed asserted at trial that he had asked the examiner to take a photograph "but there were some problems with the negative so he did not bring it to court. However, I cannot recall whether the appellant had asked for an adjournment as regards the photograph".

11. The photographs were clearly of significance to this case. The question of how much smoke was emitted was the central issue, and it was in dispute. The magistrate did not convict the appellant on his own evidence that a little smoke was emitted. The charge was that the amount of smoke was such as to be likely to cause danger or annoyance to persons; and the prosecution evidence that the quantity of smoke was a large amount was highly relevant, and it was on that basis that the magistrate convicted. Given that the prosecution evidence as to the quantity of smoke was challenged, the existence of photographs was highly material, not least once the appellant called for them. The very first question which the appellant asked the examiner in cross-examination was whether he, the examiner, had taken a photograph of the smoke, and the examiner said that he had but that he had forgotten to bring the photograph with him. The appellant also mentioned the fact that a photograph was taken when he gave evidence, and averred to the absence of photographic evidence in his closing address.

12. In particular, if the court prosecutor's recollection is correct and it supports what the appellant has told me in the course of this appeal, it was the appellant himself who had specifically asked that photographs be taken, so sure was he of his ground.

13. I am satisfied that in the circumstances the magistrate ought to have adjourned the case to enable the photographs to be found, if possible, and if found, to be produced, at least so that the appellant could examine them. Quite what happened with the photographs save that photographs were taken, is difficult on the information before me to say.

14. The record of proceedings makes no reference to any difficulty with development of the photographs. All it shows is that the examiner said in cross-examination that he did indeed take a picture of the smoke, but "I forgot to bring it with me." If so, he ought to have been asked to fetch them that day or to bring them to an adjourned hearing. As for the magistrate's recollection that the examiner said that there were large numbers of unmarked photographs and that he, the examiner might have difficulty in finding them, I have two comments. The examiner did not say that they could not be found, and he should in my judgment have been asked to try to find them. Furthermore, it is astonishing that photographs should be taken which are not then marked. What, if that is the procedure, is the point of taking the photographs?

15. For reasons which I have explained I think that the appellant has a justifiable grievance. This is a matter of procedural fairness. The failure to grant an adjournment on a matter so central to the defence in my judgment renders the conviction unsatisfactory, and accordingly this appeal is allowed and the conviction set aside. So also do I set aside the fine and the order for costs.