HKSAR v. ABDUL, MAJID MALIK

HCMA 496/2021

[2022] HKCFI 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 496 OF 2021

(ON APPEAL FROM WKS 835 OF 2021)

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REASONS FOR JUDGMENT AND DECISION ON COSTS

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Introduction

1.  The appellant pleaded guilty before Mr Kevin Tang, Deputy Magistrate (the “Magistrate”) on 4 October 2021, to a single charge of Careless Driving contrary to s38(1) of the Road Traffic Ordinance, Cap 374 (“RTO”).  A fine of $2,250 was imposed on the appellant.

2.  By his notice of appeal, dated 18 October 2021, the appellant appeals against his conviction.

Prosecution Case

3.  At approximately 5:31 pm on 16 October 2020, the appellant and PW1 were driving along in parallel and adjacent lanes of Tam Kon Shan Interchange towards the exit of Tsing King Road respectively.  The appellant was driving a Nissan motor vehicle, registration number UV5866 (“the Nissan”).  PW1 was driving a Light Goods Vehicle, registration number TJ7936 (“the LGV”).  Upon arriving at the exit of Tsing King Road, the Nissan suddenly cut across into PW1’s lane.  As a consequence of the sudden change in lane, the appellant’s Nissan struck the offside front of the LGV.

Defence Case

4.  The appellant was not represented at the date of the trial.  The Magistrate enquired whether he had reviewed the documents and exhibits provided to him by the prosecution, at which time the appellant maintained that the other vehicle had driven into him and he had not admitted to driving into the other vehicle[1]. The Magistrate ordered a short 45-minute adjournment to enable the appellant to read thorough the documents with the assistance from the Urdu interpreter[2] and to see a video clip.

5.  Having resumed proceedings, the Magistrate enquired about the car camera evidence and also explained the offence of careless driving[3]. The example he gave was as follows:

“For example, driver A was driving on a particular lane and also there’s a driver B driving on the lane next to driver A. Now if driver A decides to change lane and then subsequently had been hit by driver B, now it depends on the manner of how driver A cut into the lane of driver B. One scenario is that driver A has been cutting into the lane very carefully with signal and plenty of space cutting into the lane where driver B was and obviously the chance that the B driver was careless driving is higher. But on the contrary, if driver A was driving in such a manner that he was cutting into the lane of driver B in such a short distance without any signal and it was so little space where causing driver B colliding onto his car then obviously the person who was careless driving highly likely to be driver A.”

6.  Immediately after this explanation the appellant said, “I will plead guilty”.  There was then an exchange between the Court and the interpreter in which the interpreter confirmed the appellant wished to plead guilty but disputed some of the facts as to the damage caused and the fact that the other driver was also at fault.  Once again the Magistrate explained in some detail the way in which the facts applied to the law.

7.  The appellant maintained his intention to plead guilty.  The brief facts were read out and he agreed them.

Statement of Findings

8.  In his Statement of Findings, the Magistrate noted the basis of the appellant’s plea, which covered the facts alluded to above, as well as the action taken by PW2 and PW3, who attended the scene[4].  No complaint was made at that time as to the content of the brief facts as the basis for plea and sentencing.

Grounds of Appeal against Conviction

9.  The appellant has not raised any formal grounds of appeal against his conviction.  However, the Court has received two letters from the appellant dated 23 December 2021 and 17 January 2022, which do not appear to have been copied to the respondent.  In his letter of 23 December 2021, the appellant refers to two separate incidents, the first of which appears to bear no relation to the case at hand.  As for the second incident, which was on 16 October 2020, and relates to this appeal, the appellant maintains that the LGV hit his vehicle and his vehicle suffered worse damage than the LGV.  He disputes the diagram of the resting vehicles drawn by the officer at the scene and recorded in his notebook and also the sketch of the roundabout.

10.  Before this Court the appellant wanted to re‑litigate the careless driving on a civil basis.  He was concerned with recovery of damages.  He either had real difficulty understanding that his plea of guilty was unequivocal or he simply chose not to do so.  He could not point to any error of the Magistrate and there was no basis whatsoever for any suggestion of reversal of plea.

Analysis

11.  The Court does not have the benefit of any grounds of appeal.  The contents of the letters received by the Court do not affect the decision of the Magistrate on the issue of careless driving or the brief facts.  In essence, the appellant is appealing against his conviction which was based upon his own guilty plea on 4 October 2021.  Appealing his conviction would necessarily involve a reversal of plea or for the plea to be put aside for some other reason.  No such reasons have been advanced nor could this Court ascertain any.

12.  As rightly pointed out by the Respondent, the legal principles governing whether an application to reverse a guilty plea ought to be granted was laid out by the Court of Final Appeal in HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303.  The Court of Final Appeal stated that a guilty plea must be entered voluntarily, unequivocally and not made under duress, inducement or misrepresentation.  The pertinent question then becomes whether the appellant’s plea is equivocal in nature such that a reverse plea ought to be granted.

13.  According to the transcript of the proceedings, the appellant initially indicated he wished to plead not guilty but thereafter changed his plea after reviewing the documents provided to him by the prosecution and the video clip capturing the incident.  The Magistrate ordered a 45‑minute adjournment to better accommodate the appellant’s need to study the documents and exhibits provided to him.  The Magistrate was also at great pains to explain the procedure and the law and to relate the law to the facts.

14.  After the adjournment, the appellant changed his plea to a plea of guilty, but expressed disagreement with certain specifications within the Brief Facts.  Whilst the Brief Facts suggested both vehicles were “slightly damaged”, the appellant suggested otherwise and claimed that his vehicle was the only vehicle which sustained damages as a result of the collision.  A further and very patient discussion ensued between the appellant and the Magistrate and the appellant confirmed once more his intention to plead guilty.  The Magistrate was at great pains neither to rush the appellant nor have him enter a plea without having considered the consequences.  The appellant pleaded guilty and confirmed his guilty plea to be out of his own free will.

15.  It is clear from the transcript of the proceedings that the Magistrate had given ample opportunity for the appellant to review the evidence against him.  The Magistrate also enquired repeatedly whether the appellant’s change of plea was out of his own volition and free will and received affirmative responses by the appellant on separate occasions.  It can be said that the appellant has indicated an unequivocal plea of guilty to the charge of Careless Driving.

16.  The only issue raised on appeal is as to the amount of damage of the vehicle and the geography of the location.  Those issues are irrelevant to the issue of carelessness.  It does not affect the voluntariness and the unequivocal nature of the appellant’s guilty plea.

Conclusion

17.  The Magistrate did his very best in these circumstances to ascertain whether the appellant’s guilty plea was an informed, voluntary and unequivocal decision.  He could have done no more than he did.  Given those circumstances, the appellant’s plea was voluntarily tendered.  No other matters have been raised which undermine the plea nor the basis upon which the Magistrate sentenced the appellant.

18.  This appeal is dismissed. The appellant will make a contribution to costs in the sum of HK$2,250 to be paid within 30 days, to be taxed if not agreed.