HKSAR v. LO HING KIT

HCMA147/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.147OF 2006

(ON APPEAL FROM ESCC 2522 OF 2005)

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J U D G M E N T

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1. On 9 December 2005, the appellant was convicted after trial of doing an act tending and intended to pervert the course of public justice contrary to common law, and was sentenced on 10 January 2006 to four months’ imprisonment at the Eastern Magistracy by Ms L.K. Loh.

2. The appellant was aggrieved with the verdict and he now appeals against the conviction.

3. The particulars of the charge alleged that the appellant on 13 March 2005 at Wong Nai Chung Road near Blue Pool Road, Happy Valley, in Hong Kong, with intent to pervert the course of public justice did an act which had a tendency to pervert the course of public justice in that he knowingly made a false representation to a police officer, PC 52965, in an enquiry of a traffic accident that the appellant was the driver of a private car EJ 6222 (“the vehicle”) at the time of the accident.

4. The prosecution case, in essence, alleged that the appellant falsely represented to the police that he was the driver of a private car which had been involved in an accident whereas in truth he was not and that the appellant was aware of it.  On 13 March 2005, at approximately 12:30 a.m., Mr Yuen (PW1), an independent witness heard a loud bang and saw that the driver of the said vehicle was a male foreigner and he was accompanied by a Chinese female.  They got out of the vehicle and the Chinese female made a telephone call.  Shortly after, the appellant arrived at the scene, and had a conversation with the driver of the said vehicle.  Not long after, the foreigner and the Chinese female left the scene, leaving the appellant with the vehicle and its keys.  The police (PW2) arrived at the scene shortly.  Subsequent to the police arrival, PW1 heard some but not all of the conversation between the police and the appellant.  PW1 heard the appellant say, “I am the driver” when asked by the police who he was.  The appellant explained how the accident happened to PW2 and showed him the damaged safety island, which the left wheel of the car rammed into.  PW1 later told PW2 what he had seen and that he heard that the appellant claimed himself to be the driver to PW2.  When confronted by PW2, the appellant replied “That’s correct; the one who crashed the car was not me” and “I only came here to tow the car away for somebody”.  He also explained that he had misunderstood what PW2 referred to by asking him who was the driver of the car.  At that point, he was promptly arrested by PW2.

5. The appellant elected to give evidence and called DW2, Mr Williams, a police officer as his witness.

6. The appellant testified that his intention was merely to help a friend in need and that DW2, who was driving the said vehicle when the accident occurred, assured him that it was a minor matter.

7. DW2 admitted that he was the driver of the said vehicle when the accident occurred.  However, he denied that he asked the appellant to pretend to be the driver nor did he tell the appellant that there was no need to involve the police.

8. Counsel for the appellant raised the following grounds of appeal : 

(a) The learned magistrate erred in finding a case to answer because the prosecution evidence was contradictory, ambiguous and incapable of supporting the elements and particulars of the charge.

(b) The magistrate erred in her assessment and evaluation of the evidence in that she :

(i) endeavoured to rationalise PW2’s contradictions and inconsistencies as being due to mere confusion;

(ii) wrongly relied upon demeanour as a yardstick for assessing credibility;

(iii) appeared to have ignored the inherent improbability of the appellant claiming to be the driver; and

(iv) in rejecting the defendant’s account has introduced her own standards of proof as to what a person should or ought to have said in similar circumstances.

(c) In all the circumstances the conviction was unsafe and unsatisfactory.

Grounds 1 and 2

9. The essence of the first two grounds of appeal lies in counsel’s submissions that the state of the evidence on the most crucial and important part of the prosecution case could not reach the requisite standard of proof of beyond reasonable doubt.

10. Counsel for the appellant submitted that the evidence of PW2 was wholly inconsistent with his evidence in chief and was in direct contradiction to PW1’s evidence regarding sequence, substance and form.

11. The magistrate noted in her statement of findings that the discrepancies in PW1 and PW2’s evidence were minor and did not go to any material issues, as explained in paragraph 10 and 11 of her Statement of Findings.

12. After carefully reading the Statement of findings of the magistrate, I concur that the discrepancies were minor and immaterial as it must be stressed that PW1 could not hear the complete conversation between PW2 and the appellant, hence minor inconsistencies were inevitable and could not have affected the strength of the prosecution case.

13. Counsel for the appellant submitted that the magistrate in paragraphs 15 and 25 of her Statement of Findings, appeared to rely upon the demeanour of witnesses to determine credibility or reliability and it should not have been used to the appellant’s disadvantage.

14. In my judgment, the magistrate had carefully considered the evidence and observed the demeanour of the two prosecution witnesses and decided that they were honest and trustworthy witnesses whose evidence could be accepted.  Unless there are exceptional circumstances, an Appellate Court will rarely overturn a finding made by a trial court based on the facts of the case as found by the trial court.  The Appellate Court does not have the opportunity to hear the witnesses, hence unless there is a lurking doubt regarding whether or not the appellant should be convicted, the judgment of the lower court should not be disturbed.

15. Counsel for the appellant submitted that there was no conceivable point or advantage or sensible reason for the appellant to claim he had been the driver at the time of the accident.

16. Counsel for the appellant also submitted that the magistrate in rejecting the appellant’s account has introduced her own standards of proof as to what a person should or ought to have said in similar circumstances.

17. In relation to these two grounds, I must stress that I concur with the magistrate that, at a scene of an accident, when a police officer approaches and asks a person, who appears to be involved, the question “ Are you the driver?” it is almost irresistibly logical that he means “the driver at the time of the collision” not the “present driver of the immobilised car after the accident”.  That view is an objective one, it was not the magistrate’s own standards as to what a person should or ought to have said in similar circumstances.  The appellant after representing himself as the driver of the said vehicle, then went on to explain the cause of the accident.  The officer inspected the damaged safety island.  He then asked the appellant further questions regarding the accident and the appellant answered them.  Each of these individual acts taken together was a clear representation that the appellant was the driver of the car at the time of the accident and not the driver of the car after the accident.  The offence of intending to pervert the course of public justice is widely known to the public.  The appellant is a mature and educated adult and should have understood the consequences of his own conduct and his conduct was against the law.

Ground 3

18. After carefully considering the submissions of counsel for the appellant regarding the magistrate’s finding, it is my view that the magistrate was right to find the appellant guilty.  The appellant’s conduct had clearly broken the law and should be punished by it. I do not find the findings of the magistrate to be unsafe and unsatisfactory.  The appeal against the conviction is dismissed.

Appeal against sentence

19. Regarding the appeal against sentence, I believe the appellant might have been ignorant but he is not yet an incorrigible person.  The court will give credit for the appellant’s relative youth, previous clear record, positive good character and favourable report.  The sentence imposed by the magistrate was absolutely correct as a matter of principle.  However, taking into account the matters mentioned, I believe that if I were to follow the sentences imposed in HKSAR v. Tsang Chiu Sun, Bruce and Anor,NKCC 7582 of 2002 and HKSAR v. Nicholas Tse Ting Fung (when Community Service Orders were imposed by magistrates), that would be appropriate for this appellant.  I will substitute the sentence of four months’ imprisonment with an order that the appellant should perform 40 hours of community service as recommended by the probation officer.  I am certain that the appellant now realises the serious consequence of his own action.  

20. The appellant’s background has many aspects of it which are deserving of sympathy, perhaps more for his parents than for himself.  Having said that, I believe that the appellant was acting out of a misguided sense of loyalty to his friend or friends.  He clearly had nothing to gain by his actions that evening.  I find it suspicious that the police officer (DW2, Mr Williams) and his girl friend left the scene of the accident, leaving the appellant behind to deal with the situation.  The police officer was not injured and should have remained behind to assist the police.  It is not clear who had made a report to the police.  The appellant is 26 years of age.  He is an insurance agent with AIA earning about $20,000 per month.  He is single and is the eldest son of his parents and he has three younger brothers, all of whom are studying in England.  He is the only sibling in the family contributing to the family income.  He contributes $5,000 per month to his parents.  He attended university in England.  He has passed three out of the five subjects required to make him a member of the Institute of Financial Planners of Hong Kong.  He has also qualified to be an insurance agent in China through studies.  I believe that if the appellant had to serve a sentence of imprisonment that could well destroy what might still be a career for him in the insurance and financial planning world.  This sentence is by no means intended to be a precedent for sentences in cases of perverting the course of justice and should not be taken as such.  In such cases, an immediate custodial sentence should still be the norm.

21. The appeal against sentence is allowed to the extent mentioned.