THE QUEEN v. KWOK WING FAT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 797 OF 1993

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J U D G M E N T

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1. The appellant was convicted after trial of the offence of soliciting for passengers contrary to Regulations 40 & 57 (1) of the Road Traffic (Public Service Vehicles) Regulations. He was fined $1,000 and ordered to pay cost in the sum of $500. He now appeals against both the conviction and sentence.

2. The Appellant was a taxi-driver. The Crown’s case against him consisted solely of the evidence of a police officer who was on Task Force duty against taxi offenders. In the afternoon of 27th April 1993, the officer in plain clothes was in the vicinity of China Hong Kong City basement near the Pacific Hotel in Tsimshatsui. According to him, the appellant’s taxi was stationary outside the entrance of the hotel. The taxi-meter was covered with a “Kwai Chung” plate. When the officer walked up to the appellant, the latter solicited him. The officer then boarded the taxi. At a later stage, he revealed his police identity and informed the appellant that he was to be summonsed for soliciting for passengers.

3. The appellant gave evidence and said that at the material time he had just finished a trip and felt tired and thirsty. So he remained in his taxi on a private road outside the Pacific Hotel to take a rest and drink some water. He lowered the taxi-meter flag because he could not find his “out of service” plate. He had no Kwai Chung plate at all. Later, the officer came up to the near side of his taxi and asked if he was going to Kwai Chung. He agreed to take the officer there and the officer then boarded the taxi. When the taxi reached the Fire Station in Canton Road, the officer revealed his identity. Having heard the evidence and submissions, the learned magistrate convicted the appellant.

4. The appellant was unrepresented before me as he was before the learned magistrate. He handed up a written submission which presented his case on appeal. There were basically two main grounds of appeal. The first was that when he was cross-examining the officer, he was not allowed by the learned magistrate to read out questions which he had prepared in advance. He said that he was prejudiced as a result of this interference. The second ground of appeal was that the learned magistrate was biased against him and was not fair to him.

5. The record showed and the Statement of Findings confirmed that during the trial the appellant was apparently reading out to the witness questions which he had prepared in advance. According to the Notes of Proceedings, the learned magistrate advised him not to do so and he then put the list of questions aside. According to the written submission of the appellant, he was not merely advised but was ordered not to read out the written questions. The learned magistrate in his Statement of Findings explained what he had done in the following terms :-

“Appellant in Court took no written notes of P.W.’s evidence but attempted to cross-examine him by reading out something from few sheets of paper which he alleged to be written questions. As Appellant was in person and cases of this nature were generally to be decided on finding of facts, I considered such manner of cross-examination might bring out some questions which would be out of context from answers which might be given by the witness beyond the expectation of the Appellant or the author, if any, who had prepared such list before hearing P.W.’s evidence in chief. I therefore advised the Appellant to challenge those parts of witness evidence that he disagreed with and/or put his case to the witness instead of reading out prepared questions.”

6. With respect, I do not think that the learned magistrate should adopt such an approach. It might be that this was done with good intentions. The appellant, like any unrepresented defendant, was not familiar with court procedures let alone the techniques of cross-examination. Whether the learned magistrate had actually advised or ordered the appellant in this case to put aside the questions was not material. The important thing is whether this would create a sense of grievance on the part of the appellant that he was not being treated fairly and whether he had been prejudiced in his defence. Many lawyers would from time to time prepare written submissions or even written questions when conducting a trial on behalf of their clients. I can see no objection in this. I take the view therefore that the learned magistrate should not have asked the appellant to stop reading the prepared questions but should have assisted him. The appellant had obviously not only prepared his case but also the questions to be put to the officer. If he was asked to put the list of prepared questions aside, he might have the false impression that he was not allowed to carry out a proper cross-examination. In some cases this sort of interference might affect a defendant in person in the conduct of his defence and possibly his defence as well. But the interference in itself might or might not have prejudiced him. In fact it appears from the Notes of Proceedings that the appellant did continue thereafter to put a number of questions to the witness. It is not clear whether he had indeed been affected.

7. What concerns me more is the learned magistrate’s reasons for his findings. He gave his verdict at the conclusion of the hearing. The reasons appear in the Notes of Proceedings. In his Statement of Findings, the learned magistrate basically repeated what he said at the end of the trial. He said :

“This simple and straightforward case was to be determined by evaluation of evidence and assessment of credibility.

Having scrutinized the evidence from and assessed credibility of P.W.1 on one hand and D.W.1 (Appellant) on the other, I accept the account of the incident given by P.W.1 being truthful and reliable and reject that from the defendant (Appellant) which does not sound credible and reliable to me in particular that he has been taking a rest in the private road outside the entrance to the Pacific Hotel ... I am satisfied beyond all reasonable doubt that the case has been proved and convict defendant (Appellant) of the offence as charged.”

8. While the learned magistrate was certainly correct in saying that the case involved an assessment of credibility, he seemed to have said that he preferred the evidence of P.W.1 to that of the appellant. Although at the end of his statement, he said that he was satisfied beyond all reasonable doubt of the guilt of the appellant, what he said in his Statement of Findings did give the impression that he was choosing between the evidence of the prosecution and that of the defendant. One therefore is not free from doubt whether the learned magistrate had applied the correct standard of proof. This is a case of one word against another, i.e. the evidence of the prosecution witness against that of the appellant. It is unfortunate that the learned magistrate seemed to have, or at least had given the impression that he had, used the wrong approach. It is trite law that a defendant in a criminal case is not required to prove anything. Even if the court does not believe his evidence, it has still to be satisfied beyond reasonable doubt that the, evidence of the Crown which it accepts is sufficient to prove the guilt of the defendant.

9. Based on the two matters which I have mentioned, I do not think that the conviction is safe and satisfactory. On the other hand, the evidence of the officer, if accepted, is certainly material which may point to the appellant’s guilt. In these circumstances, I think, and counsel for the Crown accepted, that the conviction ought to be set aside and that I should order that there should be a retrial before another magistrate. The conviction must be quashed and the fine and cost paid by the appellant must be refunded.