R. v. WONG CHUNG CHONG

1996, No. MA 1372

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal from Mr Yuen sitting at North Kowloon Magistrates Court. The appellant was charged with careless driving.

2. The facts were very short. A lady was driving a red car coming towards the tunnel entrance and she said that the appellant's vehicle was moving very fast and banged into her vehicle. Everyone here was of good character and the Magistrate had a difficult task. He set out his findings in a very clear manner.

3. I am not permitted to retry cases, however, I am permitted to examine the facts of a particular case to see whether or not I can find anything unsafe or unsatisfactory in it. The lady whose car was damaged was doing her best to give honest evidence and she said that this other car hit her, she got the registration number and she followed it up. Mr Saw is quite right to say that that shows consistency in her evidence.

4. However, the Magistrate could not choose between them. He said he could not make up his mind who of the two he really believed. The burden being on the prosecution to prove, when a magistrate is put in that position, he must acquit. So what he did was he said he looked for independent evidence but the evidence in fact was not independent in the sense that it is used in court. The evidence he looked at was some very very slight scratch marks on the side of the lady's car and if he could not make up his mind as to whether he accepted her evidence as convincing, then Mr Saw's point about consistency really goes because she is being consistent in evidence which the Magistrate could not accept for sure as being what actually happened. In those circumstances, if the Magistrate said he had looked and heard the witness give evidence and she seemed to be a perfectly truthful person, her evidence is consistent and he disbelieved the defendant, then this appeal would be unsuccessful.

5. However, as he had said what he had said, Mr Macrae is perfectly entitled to say to me "Well, if he relies upon independent evidence, first its got to be independent and secondly, its got to be evidence which is consistent with the evidence of the complainant."

6. In my judgment, the evidence that was given here was inconsistent with her evidence and for that reason alone, I would allow the appeal and quash the conviction.