HKSAR v. YEUNG KING WANG AND ANOTHER

HCMA1033/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1033 OF 1999

(ON APPEAL FROM FLCC 1237 OF 1999)

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J U D G M E N T

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1. The appellants, Yeung King Wang (D1) and Yeung Wing (D2), were charged with the following offences :

(1) Driving without a driving licence (against D1), contrary to sections 42(1) and (4) of the Road Traffic Ordinance, Cap.374, Laws of Hong Kong.

(2) Using a motor vehicle without third party insurance (against D1), contrary to section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272.

(3) Permitting a motor vehicle to be driven without driving licence (against D2), contrary to section 42(3) of the Road Traffic Ordinance, Cap.374.

(4) Permitting a vehicle to be used without third party insurance (against D2), contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272.

They pleaded not guilty to the charges and were convicted after trial. They sought to appeal against the convictions.

The prosecution case

2. The two appellants were father and son. On the material date, they went to Palm Springs Garden to visit a relative. A neighbour, PW1, saw the 2nd appellant ("D2") teaching the 1st appellant ("D1") how to drive in a vehicle. The vehicle was a van that belonged to the 2nd appellant and the 1st appellant did not have a valid driving licence. The third party insurance obviously would not cover such kind of driving. That was the gist of the prosecution case.

3. At the trial, the prosecution had called three witnesses to testify. PW1 was the main witness. In the afternoon of 9 May 1999, he went out of his house and saw a goods vehicle at the end of the road. It was driven by a young male from the end of Maize Path towards the Palm Springs Boulevard. PW1 identified the registration number to be FZ4420. There was an older male sitting next to the driver. The driver drove in such a way that the van was choking from time to time and it even stalled at the road junction. PW1 said he heard the older male teaching the younger male how to drive. At the time, PW1 was about three meters away and the window of the vehicle was open. PW1 went back to inform the management office as he suspected that the young male was not a qualified driver.

4. Shortly afterwards, PW1 went out and still saw the same van. The young man continued with the driving while the older male remained sitting next to him. PW1 made another phone call to the management office. He was told that no-one was available to make any enquiry. Later, he made a report to the police after observing the van was still being driven in that manner. The police arrived and PW1 gave them the details. He also identified the appellants to the police.

5. The other witnesses gave evidence also. They dealt with the investigation and the arrest of the appellants.

The defence case

6. Both appellants elected to give evidence and a defence witness was called. The 1st appellant said it was his father, the 2nd appellant, who was doing the driving to Palm Springs Garden on the material day. His aunt lived there. He said his father had to drive the van to the end of Maize Path and made a U-turn to his aunt's house because the house was on the right side of the road. He was doing so slowly. His father eventually parked the vehicle outside the house. When he was about to get off the vehicle, his father told him to remain inside the compartment to switch on the indicator light. He did as told. His father then went to the rear to check if the lights were working. Afterwards, his aunt told his father to park outside House 10D.

7. Having parked the vehicle and got off, the 1st appellant said his father told him to return to the van to fix the speaker. So he obtained the car key and went back to the van. He found that the speaker had a wiring problem so he made the re-connection. Then he saw the police approaching him. He denied the allegations made against him and explained what had taken place in the cautioned statement. He said that the goods van was a new purchase, and his father was not driving too well on that occasion. He said his father only received his driving licence in 1998. As to himself, he did not know how to drive and he was not interested in driving.

8. As to the 2nd appellant, his account was basically similar to what his son had said. He further explained that as it was the first time he went to that location, he was driving slowly after passing the gate of Palm Springs Garden. He thought there was a problem with the indicator lights so he asked his son to assist by testing the switch. He also asked his son to deal with the speaker problem, which only involved a wire re-connection.

9. The defence witness was the mother of the 1st appellant, wife of the 2nd appellant. She was a passenger on board the van. She said she heard loud singing from her brother in the house when they approached the address. She saw a couple at the first house at Maize Path who seemed to be displeased to see another such van arriving. Having heard the man's comment, she stared at the couple. She did hear the 2nd appellant, her husband, asking the son to assist in checking the rear lights. Later she went inside the house.

The findings by the magistrate

10. The learned magistrate had given a careful assessment of the witnesses and evaluation of the evidence. She had reminded herself of the clear record status of the two appellants and that they denied the allegations at the first opportunity. However, having seen the witnesses and analysed the evidence, she did not accept the account given by the appellants, particularly regarding the incidents of the checking of the indicator lights and the fixing of the speaker wires. She considered that PW1, the complaint, was honest and reliable. She had closely examined the circumstances under which PW1 had observed the incident and finally came to the conclusion that he had made the correct identification and there was no honest mistake involved.

11. The appellants were both unrepresented at the appeal, although they were represented by counsel at the trial. They, in turn, raised complaint that the magistrate should not have believed PW1. The 2nd appellant believed PW1 was making up the allegations because of the loud singing and his van might be an ugly sight in PW1's eyes. The 2nd appellant insinuated that the magistrate had blindly accepted PW1's evidence because of his social status.

12. As I have explained to the appellants, my duty was not to embark on a retrial of the case. I would not re-assess the witnesses' evidence. Findings of facts by the magistrate should not be disturbed without valid reasons. The complaints really related to the factual determinations made by the magistrate. Having read the Statement of Findings and heard the submissions, I was not persuaded that there was any grounds to disturb the conviction which was based on the magistrate's findings of the credibility of the witnesses. Hence, the appeal must be dismissed.