HKSAR v. LEE YUK SUI

HCMA749/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 749 OF 2006

(ON APPEAL FROM TMS 2466 OF 2006)

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 J U D G M E N T

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1. The appellant was convicted after trial of one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374.  He was fined $5,000 and suspended from driving for six months.  He had earlier pleaded guilty to a summons of carrying passenger in excess, contrary to Regulations 53(3) and 61(1) of the Road Traffic (Traffic Control) Regulations made under Road Traffic Ordinance, Cap. 374.  The appellant now appeals his conviction of dangerous driving.

Facts of the case

2. A collision happened between PW1’s private car and the tow truck driven by the appellant at Lam Tei and PW1’s vehicle was pushed from the lane he was travelling to a hedged area on his right.  PW1 said that prior to the collision there was an earlier encounter where the appellant drove in such a manner as to cause him to brake abruptly to avoid a collision.  PW1 said that he finally overtook the appellant’s tow truck, intending to signal it to stop but was eventually persuaded against it by his wife.  His evidence was that it was a revengeful collision by the appellant who caught up with him and deliberately swerved straddling double white lines to collide into his vehicle.  Both PW1 and his wife, who was also a passenger on board his vehicle at the material time, testified that after the appellant stopped and before police officer arrived, he told them : “I deliberately hit you.  I wanted to hit you to death.”

3. When the police officer arrived, the appellant admitted to have involved in a collision but claimed that it was PW1 who suddenly swerved left into his lane and collided into his tow truck.  He maintained the same version when interviewed under caution, and he denied any earlier encounter with PW1 prior to the collision.

4. PW1’s private car was damaged at the front, the head light, left indicator and left fender were dented and broken.  There was no noticeable damage on the tow truck.

5. The appellant elected not to give evidence or to call evidence.

Grounds of appeal

6. Grounds of appeal and written skeleton were settled by Mr Oliver Davies who was trial counsel for the appellant.  The appellant, however, filed a notice to act in person dated 16 October 2006, and at this appeal hearing, the appellant, representing himself, adopted those grounds and skeleton submission so settled.  For clarity sake, I shall summarize and regroup them as follows:

(1)     The learned magistrate erred in rejecting the statements made by the appellant immediately following the incident and under caution :

(a)    The magistrate erred in failing to sufficiently consider that the damage to the two vehicles could provide support to the version of events related by the appellant to the police officer;

(b)   the magistrate’s reasons for rejecting those statements were flimsy and against the evidence in the case. 

(2)     The magistrate erred in placing weight on words uttered by the appellant to PW1 and PW2 after the collision and rely on such to infer that the appellant had the intention to drive as PW1 and PW2 claimed.

(3)     The magistrate erred in taking judicial notice of certain phrases or words without informing appellant’s counsel during the trial.

(4)     The magistrate erred in drawing the only reasonable inference that the appellant deliberately swerved into PW1’s vehicle from the facts when there existed other possible inference advantageous to the appellant. 

Respondent’s reply

7. (1)     Counsel for the respondent submitted that the magistrate was entitled to reject the appellant’s version in his cautioned statement, on the basis of “implausibility and superficiality”.  It was also submitted that the damage to PW1’s vehicle was consistent with his version of the collision, considering the high speed of the truck as described veering into PW1’s lane straddling the double white lines. 

(2)     The magistrate was entitled to place no weight on part of what was said by the appellant to the two prosecution witnesses after the accident, but placed full weight on the rest to draw the inference of knowledge and indeed intention to swerve on the part of the appellant.

(3)     This case does not rest on when PW1 first saw the licence number of the appellant’s tow truck, nor whether the alleged earlier argument between PW1 and the appellant was in the form of verbal argument or otherwise.  The complaint that the magistrate wrongly took judicial notice of certain phrases was unjustified.

(4)     The magistrate was mindful of the standard of proof and had properly drawn the inference against the appellant.

My judgment

8. This is yet another case that counsel at the trial did not call his client to provide a proper contest where the prosecution case here alone does not contain seeds of their own destruction, (see HKSAR v. Chan Hung Kwan, HCMA667/2006).   Had this been such a case, I have no doubt that Mr Davies would be quick to jump to his feet at the end of the prosecution case to make a no case submission.  And I take Mr Shiu’s words today that there hasn’t been such a submission. 

9. I do not wish to reiterate what I said in HKSAR v. Chan Hung Kwan, suffice it to say that by not calling his client to the witness box, the magistrate was correct to point out that : “there is no explanation offered by the appellant or any evidence to contradict the prosecution evidence”.

10. The evidence was there, sufficiently, uncontradicted.  The magistrate has gone to great length to explain his analysis of the evidence.  What is now advanced on appeal is to take, out of context, individual sentences, phrases or words in the Statement of Findings where the magistrate explained his findings, to try and create an argument that the prosecution evidence could not support this conviction, or that the magistrate has erred in making the findings as he did.  The attempt at launching a microscopic dissection of the Statement of Findings where there was no evidence to contradict the prosecution case is doomed to failure.

11. For instance, it was submitted that the magistrate’s findings that there was an earlier “argument” between the parties was based on the magistrate’s own and misunderstanding of the word “argument” to include expression, gestures as well as verbal exchange.  The Oxford Dictionary of English, 2^nd Edn, was relied on as to the meaning of the word “argument”.  This submission completely lost sight of the fact that the appellant’s case, in the Cautioned Statement, was that there was no prior encounter, verbal or otherwise, of any kind between him and PW1 before the collision.  Apart from playing with semantics, that submission took the grounds no further. 

12. The magistrate, when rejecting the version of events as related by the appellant to the police officer at the scene and under caution, said this :

“The truthfulness of the appellant’s version of the events contained in P4 as well as what he told PW3 at the scene and his credibility was not tested in the trial because he elected not to give evidence nor called evidence to support his case.”

13. He then went on to say why he considered that version inherently improbable and rejected it.  The magistrate did take into account the damage to the vehicles.  It is a futile attempt to rely on the diagram drawn by PW1 to show that PW1’s version of how the collision occurred was unreliable.  According to paragraph 8 of the skeleton submission prepared by counsel and indeed adopted by the appellant :

“… PW1 drew a sketch (Bundle p. 61) showing the right side of the appellant’s vehicle parallel to the left side of their vehicle at the time of collision.  At no time, during the trial, was it suggested that the witnesses may have been mistaken.  The learned magistrate, however, found that PW1’s sketch could not be an accurate depiction of the events as they happened.  It was not suggested by the prosecution during the trial that the sketch was not accurate, on the contrary it was submitted as a prosecution exhibit, P5.”

14. The magistrate explained in pages 10 and 11 (Appeal Bundle pages 39 and 40) of his Statement of Findings why he found the appellant’s tow truck cut into the path of PW1.  He relied on the evidence of PW1 as to speed of the appellant’s tow truck and the damage to PW1’s vehicle to conclude that the tow truck cut into PW1’s lane at an angle.  He made it plain that he did not rely on the sketch of PW1.  

15. The above submission is misconceived in the following aspect.  That sketch, drawn at the time when PW1 gave his witness statement to the police, was just like any other witness statements, and at no time was PW1 cross-examined on the accuracy of this sketch as a previous inconsistent statement.  Although it was made an exhibit in this case, it would indeed be wrong to place weight on its content as a previous consistent statement.  At most, what it illustrates was the fact that a sketch was drawn earlier.  The magistrate rightly took no heed of the content of the sketch although based on a different reason. 

16. It was argued that the damage could lend support to the version given by the appellant to the police officer.  The magistrate, however, found that piece of evidence could equally support PW1’s version of the event.  There is no evidence from the defence as to how the damage was caused apart from his out of court, untested statement.  The magistrate was entitled to reject that.

17. I now turn to the evidence of what was allegedly said by the appellant to PW1 and PW2, which remained an insurmountable hurdle with the appellant’s election as he did.  I do not have the benefit of the full transcript of the trial before me.  It was submitted by the appellant that the magistrate erred in finding on the one hand that these may be angry words, by relying on such to draw the inference that the swerving was intentional.  The appellant’s submission relied on the case of R v. Lo Tong Kai [1977] HKLR 193, a case not on dangerous driving but on criminal intimidation, where the prosecution is required to show that the person making the threat intends to cause alarm to the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it.  The elements of a dangerous driving charge is completely different, and I do not see what benefit could be derived from quoting that case.  In any event, what the magistrate said was this :

“… What he said to PW1 and PW2 after the collision may be angry words only, but one can draw the inference from what was said that the swerving was intentional. …”  

It is clear that the magistrate rejected that part of the statement relating to an intention to hit the prosecution witnesses to death, whilst accepting the part that he deliberately caused the collision.  The magistrate was perfectly entitled to do so.  To try to argue the whole of what was said could have a different meaning, that the appellant did not mean what he said, is to invite the court to imagine a possible defence where there was simply no evidence.

18. In R v. Chong Kin Cheong, CACC196/1995, the Court of Appeal held that :

“As was his right, the applicant chose not to give evidence.  This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence.  By the same token it is not his — nor that of a jury — to speculate upon the absence of possible evidence.  His duty was to try the case just on the evidence before him.” 

19. And the magistrate was entitled to draw the inference as he did.  All grounds are threadbare and misconceived.  There was ample evidence to convict.  The appeal is dismissed, I affirm the conviction.

20. It is about time counsel conducting the trial in the Magistracy and advising on merits of an appeal should take a long and hard reflection at what they are doing.