R. v. LAW KWOK CHI, HERMAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.12 OF 1997

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J U D G M E N T

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1. This appeal arises out of conviction on 25^th November 1996 of the appellant in that he being a taxi driver refused to accept hire.

2. The evidence presented by the prosecution was that on 1^st June 1996 at about 1:05 p.m. in Sha Kok Street, the 1^st witness for the prosecution ("PW1") hailed a taxi proceeding along Sha Kok Street with its light on and its "for hire" sign visible. The taxi stopped and as the wife of PW1 attempted to enter the vehicle, the taxi drove off and picked up another passenger some hundred meters away.

3. The difficulty that I have is that there was produced to the witnesses by the defence a photograph of the scene. That photograph is Exhibit D1. PW1, the principal witness for the prosecution, was asked to mark that photograph with the point where the taxi stopped and then refused the hire. He did so with a blue circle. The magistrate in her reasons accepted that the point where the blue circle had been placed was the point where the taxi stopped and I accepted that as a fact.

4. The witness said in his cross-examination that at the place where the taxi stopped, there was no railings. This was important because the wife of PW1 was with him, they had a baby in a pram and PW1 pushed that pram down onto the roadway.

5. The magistrate accepted as a fact that there was no railing at the point where PW1 stopped the taxi. The difficulty is that an examination of D1 shows that there clearly is a railing and with a railing in such a place and of such a manner, it would be physically impossible for PW1 to have pushed the pram down on the roadway to intercept the taxi.

6. On the uncontradicted evidence of the photograph, the findings of fact by the magistrate cannot be true. This discrepancy needed to be dealt with and it has not been dealt with. In all the circumstances, the appeal against conviction must be allowed as I must have a doubt as to the facts which ought to have been found by the magistrate. The appeal is allowed and the sentence is quashed.