HKSAR v. LUNG KAR HING, ROBERT

HCMA680/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 680 OF 2000

(ON APPEAL FROM NKS 5838 OF 2000)

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J U D G M E N T

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1. The appellant was summonsed for the offence of "Jaywalking". The particulars of the summons stated that :

"Information has been laid THAT [the appellant] on 1/3/2000 at 1:18pm at AUSTIN ROAD JUNCTION WITH NATHAN ROAD being a pedestrian at a light signal crossing did, without reasonable excuse, fail to comply with the indication given by a red signal illuminated by steady light as prescribed by Regulation 33 Road Traffic (Traffic Control) Regs., Cap.374."

2. The appellant pleaded not guilty to the summons and conducted his own defence. He was convicted by the learned magistrate after trial. He was fined $400. After a unsuccessful review application, the appellant sought to appeal against the conviction.

3. The learned magistrate had prepared a very clear Statement of Findings. He had ably set out the background of the case, summarized the testimonies, assessed the witnesses, analysed the evidence and reminded himself of the relevant legal principles. At the end, he concluded that he was satisfied of the truthfulness of the prosecution witness and he rejected the account given by the appellant. In relation to the review, the learned magistrate found that nothing raised in the application had caused him to doubt the correctness of the conviction. In the written notice for appeal, the appellant complained that there was no evidence to support the conviction.

4. This was a rather simple case. The prosecution had called one witness, Sergeant 19160, who testified that on 1 March 2000, he was on uniform duty at the junction of Nathan Road and Austin Road. His main task was to catch pedestrians who failed to comply with traffic lights. Before he commenced the exercise, he had first checked the traffic lights and he found them to be in proper working condition. Then he started to make observation at the pavement of Nathan Road. Later he saw the appellant run across the road. He intercepted the appellant and pointed out the red pedestrian light to him. The appellant replied, in English, that he thought the light was green. He then informed the appellant that a summons would be issued against him.

5. The appellant had cross-examined the witness. The learned magistrate had succinctly covered the issues raised in paragraphs 5 and 6 of his Statement of Findings :

"5. I explained the purpose of cross-examination to the appellant and how to cross-examine a witness, which the appellant understood. The appellant asked PW1 whether any driver braked and whether any vehicles had to stop or slowdown as a result of him crossing the road. PW1 replied no to both questions. PW1 denied that he was hallucinating. PW1 said that the incident was not recorded on film, to which the appellant commented that the mind boggles that the police did not use video evidence.

6. PW1 disagreed that the pedestrian light was green and that the light started to flash soon after the appellant started to cross the road. PW1 further disagreed that when he stopped the appellant he said 'Hey you'. PW1 said he did not resent the appellant. PW1 disagreed that he only pointed out the red light 20 seconds after stopping the appellant."

6. Further, the appellant had queried the witness as to why he recorded his name to be Lung Ka Hing, Robert, on the summons when he should be addressed as Robert Lung.

7. The appellant elected to give evidence. Mainly, he stated that when he started to cross the road, the pedestrian light was green and it only started to flash afterwards. He suggested that the witness had summonsed him in order to gain promotion and that the witness did not like him. He also criticized the police for not using video recording to prove what had taken place.

8. The learned magistrate stated the basis of his decision in paragraph 12 of the Statement of Findings :

"12. I carefully considered all the evidence. Essentially the issue to be determined was one of credibility. In assessing credibility I bore in mind the decision in Ng Wai-ming [1995] 1 HKCLR 64. I directed myself as to the appellant's good character, both as to propensity and credibiltiy in accordance with the decision in Berrada [1989] Cr. App. R. 131. I was satisfied so I was sure PW1 was a witness of truth. I had no hesitation in rejecting the appellant's evidence. NOTHING IN WHAT THE APPELLANT SAID CAUSED ME TO DOUBT PW1'S EVIDENCE." (My own emphasis)

9. At the hearing of the appeal, the appellant argued that the last sentence indicated that the magistrate had violated the principle of the presumption of innocence. He argued, inter alia, that the effect of this sentence meant that he had to prove his innocence.

10. I could not agree that the learned magistrate had committed such an error. His remark must not be read out of context. Of course, the prosecution had to prove an offence beyond a reasonable doubt. The situation is that a defendant always has a right to remain silent. If a defendant gave evidence, and if his evidence were accepted by the magistrate, he should be acquitted of the offence. Even if his evidence were rejected in total, the magistrate must still consider the prosecution evidence to see if the offence could be proved. However, if the defendant's testimony somehow caused the magistrate to doubt the evidence of the prosecution witness and the prosecution case, the magistrate must also acquit. Apparently, the learned magistrate was just stating the relevant principles in a different way.

11. What the learned magistrate had written in paragraph 13 illustrated that he had applied the correct principle regarding the onus and standard of prove. He wrote that :

"13. I found as a fact that when the appellant crossed Austin Road the pedestrian light was red. I was satisfied so I was sure the prosecution had proved all the elements of the summons beyond reasonable doubt. I found the appellant had no reasonable excuse for failing to comply with the red pedestrian light. In reaching my verdict I bore in mind the burden and standard of proof and that the burden was on the prosecution throughout."

12. The appellant also submitted that he should be allowed to recall PW1 for further cross-examination as he was not sufficiently prepared to conduct the questioning at the trial. He again criticized the witness for having recorded his name wrongly. He argued that in the case of Ng Wai Ming [1995] 1 HKCLR 64, the judge at least relied on the observation of demeanor to convict, but in the present case, the magistrate could not say how his demeanor had revealed his mendacity. He said that he should not be asked whether he was a Catholic or Christian, as there should be no difference between the two. In this regard, I believe the reason why such a question is usually asked before a witness takes the oath is that, in Chinese, there is a different way to address God by the Christians and Catholics. It is not meant to be rude or discriminatory.

13. The learned magistrate had seen the witnesses and heard their evidence. He had reached a conclusion on their credibility. He had accepted the evidence of the prosecution witness and duly convicted the appellant. He had also dismissed the review application after a careful consideration of what the appellant had said. Having heard the appellant myself, I could find no reason to disturb the conviction either.

14. The appeal must be dismissed.