HKSAR v. LEUNG KWOK YIN ERIC

[English Translation - 英譯本]
HCMA 1078/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

 MAGISTRACY APPEAL NO. 1078OF 2007

(ON APPEAL FROM KCS NO. 10642 OF 2007)

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REASONS  FOR  JUDGMENT

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1. The Appellant was convicted by the Deputy Special Magistrate after trial on one count of “failing to comply with a traffic light signal”, contrary to sections 18 and 61(1) of the Road Traffic (Traffic Control) Regulations enacted under the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong, and he was fined $1,200.  He appealed against conviction.  After the hearing, I allowed the appeal.  I now set out the reasons for my judgment.

Prosecution case

2. In a nutshell, the prosecution case was that when PW1 was driving his private car along Waterloo Road intending to turn right into Hereford Road, he stopped in front of a red light.  He saw a private car ahead of him “jumping the red light”, and he reported the matter to the police afterwards.

3. With the information provided, the police managed to locate the Appellant, who admitted that he was the driver of the private car on the day in question.

Defence case

4. The Appellant admitted that he had turned right into Hereford Road but denied having jumped the red light.  He said that he would not even “jump the amber light”.  He claimed that he had changed from the second lane to the third lane counting from the left of Waterloo Road, during which a driver sounded his horn as he was not happy with this manoeuvre.  One Mr. Lau, Counsel for the Appellant at trial, submitted that the defence case was that PW1, out of anger, fabricated evidence against the Appellant by alleging that he had jumped the red light.

Grounds of appeal

5. Mr. Li, Counsel for the Appellant on appeal, put forward three grounds in support of the contention that the conviction was neither safe nor satisfactory:

Ground 1

In making the verdict, the deputy special magistrate failed to direct herself fully on the Appellant’s clear record. 

Ground 2

The deputy special magistrate erred in failing to consider the Appellant’s evidence and unjustifiably rejected the Appellant’s evidence.

Ground 3

The deputy special magistrate erred in finding that PW1 was a veracious and reliable witness and accepting his evidence without thoroughly considering the contradictions or inherent improbabilities of such evidence.

Having heard the submissions of Mr. Li and the reply by Mr. Kwok for the Respondent, I believed it was necessary to deal only with Ground (2).

6. The particulars of Ground (2) as set out in Mr. Li’s written submissions were as follows:

Particulars

(1)     The rejection by the deputy special magistrate of the Appellant’s case was wrongly based on the improbability as opposed to the incredibility of the relevant evidence;

(2)     In her oral verdict, the deputy special magistrate gave the following reasons for rejecting the Appellant’s case:

‘Well, I do not believe such a thing would have happened because, even if there was one more car ahead of him or he had to wait for the light to turn green again, these were very trivial matters.  I do not believe that someone would make a false report to the police solely because of that.  Therefore, I do not believe your evidence.’ (Paragraphs I-J of page 38 of the Appeal Bundle)

(3)     And in her written verdict, the deputy special magistrate gave the following reasons for rejecting the Appellant’s case:

‘I do not believe that one would make a false report to the police because there was one more car ahead of him or he had to wait for the light to turn green again.’ (Page 22 of the Appeal Bundle)

(4)     The wholesale rejection by the deputy special magistrate of the defence that the Appellant had been framed up because he had changed lane was grossly improper and erroneously took away the evidential value of the evidence which required careful consideration.

Discussion  

7. With a lack of independent witnesses, the present case is a classic example of a “one-against-one” situation.  The Appellant had a clear criminal record and had elected to give evidence.  When dealing with his evidence, the magistrate had to bear in mind that his credibility was higher and his propensity to commit offences was lower.

8. Although the magistrate was a deputy special magistrate, she had been working in that post for over one year.  In addition, the defence had made relevant final submissions at trial.  Therefore, it would seem far-fetched to suggest that the deputy special magistrate had no knowledge of the relevance of the Appellant’s clear record to the present case.

9. Having said that, I was indeed troubled by the magistrate’s approach to the Appellant’s evidence.  It was highly problematic for the magistrate to disbelieve the Appellant’s evidence because she did not believe the prosecution witness would frame him up.  It is true that, as a matter of common sense, it is unlikely that a member of the public will fabricate evidence to frame up a person because that person has changed lane.  In the present case, the Appellant and the prosecution witness did not know each other, and there was no evidence of any grudge between them.  The Appellant’s version was that he had not “jumped the red light” at all, which meant the defence case was: given the Appellant had not jumped the red light but the prosecution witness alleged that he had, the witness must have framed up the Appellant.  As it turned out, the Appellant did not have any evidence to show that the witness had framed him up.   

10. Although Counsel for the Appellant at trial made submissions along the above lines, the magistrate, being fully conversant with the cases for both sides, should have been aware that the “frame-up” argument put forward by the Appellant was pure conjecture with no solid evidence in support.  This being the case, although the magistrate did not believe that there was a “frame-up”, that did not mean that she did not have to consider the Appellant’s version that he “had not jumped the red light”.                                     

11. It was improper for the magistrate to say in her oral verdict, “… I do not believe that someone would make a false report to the police solely because of that.  Therefore, I do not believe your evidence”.  If what the Appellant said was true or might be true, the evidence of the prosecution witness would be put into doubt.

12. In considering whether the Appellant’s evidence was credible and reliable, the magistrate had to take into account the Appellant’s clear record.  Furthermore, the present case came about in an unusual manner: the prosecution witness had only told the police the registration number of the private car, and the Appellant admitted that he was the driver when he provided driver’s information in accordance with the statutory provisions. He had not been stopped at the scene, nor had his identity been revealed under other circumstances.  He can be said to have “given himself up”, and he had testified in court.  In my view, against this unusual background, the magistrate should have carefully considered the Appellant’s evidence instead of completely rejecting all his evidence on the sole basis that there was no reason for the prosecution witness to frame him up.

13. As the magistrate had relied on a wrong basis in refusing to accept the Appellant’s evidence, she had failed to properly consider whether the defence case had put the prosecution case in doubt and whether the prosecution had successfully proved its case.

14. For the above reasons, the conviction was in my judgment unsafe and unsatisfactory, and I allowed the appeal.