HKSAR v. LO SAI WING WINSON

HCMA 163/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 163 OF 2003

(ON APPEAL FROM KCCC 12687/2002)

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J U D G M E N T

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Introduction

1. The Appellant was convicted after trial of Speeding (1st Charge), contrary to section 4(1)(a) of the Road Traffic Ordinance, Cap. 374 and Dangerous Driving (2nd Charge), contrary to section 37(1)(a) of the same ordinance. He was fine $4000.00 and disqualified from holding or obtaining a driving licence for 6 months for the 1st charge and 3 months imprisonment and disqualified from holding or obtaining a driving licence for 6 months for the 2nd charge. The disqualification orders to run concurrently. The Appellant appealed against his conviction.

Summary of facts

2. Two defendants were on trial before the learned Magistrate and the Appellant was D2. The Prosecution case was that on 20 January 2002 at about 3:30 a.m. a traffic accident occurred at the junction of Clear Water Bay Road and New Clear Water Bay Road involving two private cars: KA 743 driven by D1 and JJ847 by D2.

3. The Prosecution called 4 witnesses, all policemen. The gist of their evidence was that PW1 saw a group of 4 roaring cars travelling at high speed along Lung Cheung Road and he activated the radar. The radar only took photographs of two cars and the speed recorded was 198 km/h and 190 km/h respectively. The Prosecution alleged that those two cars were the first and fourth of the 4 roaring cars. No photograph was taken of the Appellant's car. Both PW3 and PW4 saw the radar camera flash and shortly afterwards 4 cars were seen. PW3 mounted his motorcycle immediately and gave chase. The group of cars turned into Clear Water Bay Road before PW3 reached the junction and he lost sight of them for about 8-9 seconds. When PW3 entered Clear Water Bay Road he again saw a group of 4 cars. Subsequently the two cars at the front collided and the other two U-turned and fled. It was the Prosecution case that D1 and the Appellant's cars were among the 4 roaring cars, with D1's car being the first car captured in photograph by the radar.

4. The defence (as given in a Record of Interview) was that the Appellant did not drive in Lung Cheung Road at all. He entered Clear Water Bay Road from Prince Edward Road and kept driving at a speed of 60-70 km/h.

5. The learned Magistrate did not accept the Appellant's account as disclosed and found the Prosecution case proved.

Grounds of appeal

6. Mr Polson acknowledged that the learned Magistrate had given an extremely thorough Statement of Findings and it is difficult to interfere with a magistrate's findings of facts. Nevertheless Mr Polson submitted that there was no or no sufficient evidence to support the conviction; that the learned Magistrate had not adequately dealt with the submission by the Defence at the time of trial; and that the learned Magistrate drew inference in circumstances when it was not appropriate to do so.

7. Mr Polson submitted that the evidence clearly showed that the first car captured by the radar had its number plate covered while the two collided cars, when subsequently photographed by the police, did not have any such covering. PW3's evidence was such that D1's car was that first car. Subsequent examination of D1's car did not reveal any traces of sticker. The learned Magistrate made the following findings (para. 33 at page 53 of the bundle):

"I took into account there were opportunities, without the awareness of any police officers including PW3, that the covering be removed before photographs were taken."

Mr Polson complained that the learned Magistrate's said finding was unfounded, illogical, speculative and against the weight of the evidence. He said PW3 arrived at the scene very quickly and PW3 was specifically asked whether the registration number was covered. It was only after a number of questions that PW3 agreed if the reflective number plate were covered it would have been obvious. Mr Polson further submitted while the learned Magistrate said (in para. 14 on page 47) "... Even though [PW3] had not paid attention to the number plate..." PW3 in evidence had not said so.

8. Mr Polson submitted that after the collision, D1 was injured and trapped inside the car so D1 could not have removed the covering. Though D2 managed to get out of the car after the air-bag was activated, D2 would have been so dazed that it would have been unlikely for him to remove the covering. Furthermore, the police were upon the scene very quickly. There was simply no opportunity for anyone to remove the covering.

9. Mr Polson submitted that the Appellant could have entered Clear Water Bay Road from Prince Edward Road but not noticed by PW3. He complained that the learned Magistrate was being speculative when he said (in para. 47 at page 57): "... If he had been asked by the car owner to drive the car back on his behalf, he should have driven the owner home as well." Mr Polson also took exception of the following remark by the learned Magistrate in the same paragraph: "There were clear skid marks but the Appellant said he had not braked." Mr Polson referred me to questions and answers (number 41, 51 and 54) in the Appellant's said Record of Interview. These questions and answers were to the effect that although the Appellant did not apply any brake, the Appellant felt the car skidded forward when his vehicle was hit, and that he thought the tyre marks on the road behind the wheels of both cars were left when the two vehicles collided and skidded forward.

10. Mr Polson emphasised the fact that the police did not notice the black bonnet on the Appellant's car. He submitted that the black bonnet was very obvious. If the police could notice the comparatively thinner spoiler there is no reason for the police not to notice the black bonnet.

11. For these reasons, Mr Polson submitted that the conviction was unsafe and unsatisfactory.

Respondent's response

12. Ms Lily Wong, Counsel for the Respondent, gave a relatively short response. She urged me not to focus on individual matters but to step back and view the incident as a whole. She submitted that there was sufficient factual basis for the learned Magistrate to draw an irresistible inference that the Appellant's car was among the group of 4 cars. The credibility and reliability of the prosecution witnesses were vigorously attacked by defence counsel and the learned Magistrate found them "... unshaken and firm in their testimony." The learned Magistrate did not find any of the prosecution witnesses evasive or dishonest but found them honest and credible. The factual issue raised by the Appellant during the appeal had all been canvassed by defence counsel thoroughly before the learned Magistrate and the learned Magistrate had given sufficient thoughts to them.

13. As to the learned Magistrate's finding that there were opportunities for the covering to be removed, Ms Wong submitted the learned Magistrate was using his common sense and wisdom when he said there was such an opportunity.

Ruling

14. As fairly and properly conceded by Mr Polson, the learned Magistrate has prepared an extremely thorough Statement of Findings. It is also very difficult to ask an Appellate Court to interfere with the learned Magistrate's findings of facts.

15. Although I am not supplied with a full transcript of the trial, judging from what is made available, it could be fairly said that the defence had left no stones unturned. The prosecution witnesses were vigorously cross-examined. Their relevant answers were repeated almost verbatim to the learned Magistrate during final submission by the defence. The factual issues mentioned by Mr Polson ... the radar photo showing a car with registration number covered; D1's car when photographed did not have the registration number covered; subsequent testing of D1's car did not find any traces of sticker; the police failing to notice the black bonnet on the Appellant's car ... etc. have all been thoroughly canvassed and argued before the learned Magistrate and the learned Magistrate had given detailed analysis of the evidence and reason for his findings. I find no fault with his reasoning or findings.

16. I wish to add that it is incorrect for Mr Polson to submit that PW3 did not say he did not pay attention to the registration number plate. According to what D1's counsel read to the learned Magistrate (page 148 of the bundle) PW3 was cross-examined as follows:

"Q. The first thing to see was the licence plates?

A. I didn't pay attention to the licence plates."

Later on PW3 was asked:

"Q. As you approach those vehicles, if they (sic) had been tape on the vehicle plates, you, one would have seen it.

A. That's possible.

Q. And, you would have seen it because it would have caught your eye.

A. No Incidents attracts my attention more than that."

PW3 did say he did not pay attention to the number plates and that other incidents attracted his attention more than the number plates.

17. Having re-read the learned Magistrate Statement of Findings and further considered the detailed arguments advanced by defence counsel for both D1 and the Appellant during the trial, it is quite clear that when the learned Magistrate said:

" I took into account there were opportunities, without the awareness of any police officers including PW3, that the covering be removed before photographs were taken"

he was referring to the time after the collision, not during the 8-9 seconds when PW3 lost sight of all 4 cars. I do not agree with Mr Polson that on the evidence before the learned Magistrate he was making an unfounded and speculative finding. The evidence before him was that the first car, when captured by the radar photo, had its registration number plate covered. The evidence of PW3 was such that D1's car was that first car. D1's car when photographed did not have its registration number plate covered and subsequent testing did not find any traces of stickers. The learned Magistrate was satisfied that on the evidence before him there were opportunities for the covering to be removed. He also said "while using of sticker was a convenient mean to cover the plate, it was not the only method" (para 33 at page 53 of the bundle). It is not in dispute that people engaged in illegal road-racing would normally cover their car's registration number plates. It is also logical and understandable for these people to remove such damaging evidence if opportunities were given. Although a number of police attended the scene of collision shortly after the accident and PW3 actually witnessed the collision, I am satisfied on the evidence before the learned Magistrate he is entitled to make that finding.

18. The Appellant did not give evidence during the trial. His Record of Interview (which was a mixed statement) was admitted into evidence. The learned Magistrate analysed the Appellant's account as recorded and gave reasons why he did not believe the Appellant. The learned Magistrate is fully entitled to accept or reject any part of the account or to give any or no weight thereto. I find no substance in Mr Polson's attack on the learned Magistrate's reasoning for not accepting the Appellant's account.

19. The learned Magistrate did say "[t]here were clear skid marks but the Appellant said he had not braked". There is no dispute that the Appellant did say in the Record that he had not braked. However, he also gave his belief as to how the skid marks came to be present. How there could be tyre marks caused by the two cars skidding forward without the Appellant's braking his car was not explained

20. The learned Magistrate has very conscientiously and with meticulous care set out all the relevant evidence. He dealt with all inconsistencies and criticisms raised by the defence. He analysed all the evidence and gave detailed reasons why he made his findings of facts. It is clear that on his findings the Appellant was guilty of both charges. Despite what the learned Magistrate had said about the 'skid marks' I am satisfied that the convictions are neither unsafe nor unsatisfactory. The appeal is dismissed.