THE QUEEN v. YIP LAM ON AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1048 OF 1989

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BETWEEN

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J U D G M E N T

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1. On the 5th of July 1989, Mr. Venning convicted the 1st appellant of driving without a licence, of driving without third party insurance and of driving a car when the front seat passenger was not securely fastened with seat belt. He also convicted the 1st appellant and his brother, the 2nd appellant, of doing an act tending or intended to pervert the course of public justice. The appellants now appeal against these convictions.

2. The evidence presented by the prosecution was that PC275 was on motorcycle duty in Tai Po at 9:45 a.m. on the 25th December, 1988 when he saw a front seat passenger in a Mercedes Benz, a young lady, not wearing a seat belt. He pulled alongside the car, which had stopped at traffic lights, and signalled to the driver to follow him. There were only the two persons in the car. He led the car into Wan Tau Street and stopped outside the Chun Chun Restaurant.

3. PC275 walked back to the car and conversed with the driver who was still sitting behind the steering wheel with the motor running. The driver be identified as the 1st appellant. He saw the key in the ignition at that time. He asked the 1st appellant for his driver's licence and identity card. The 1st appellant who had alighted from the car produced his identity card but said he did not have his driver's licence with him. After a discussion in which the 1st appellant asked more than once for a chance he said he had to go to the toilet and went inside the Chun Chun Restaurant. PC275 subsequently followed him but could not locate the 1st appellant. He returned to the car and waited with the female passenger, a Miss Tsui. At 10:25 a.m., the 1st appellant not having returned, he arrested Miss Tsui and took her to Tai Po Police Station leaving the car at the scene.

4. After 11:30 a.m. the 1st and the 2nd appellants appeared at Tai Po Police Station and spoke to the Duty Officer Station Sergeant Chan. The 1st appellant was seeking the return of his identity card and told the Duty. Officer that he was not the driver of the car as he had no licence. The 2nd appellant was asked why he was present and he told the Duty Officer he was the driver at the time of the incident.

5. It is not in dispute that at the time of the incident the 1st appellant was not the holder of a valid driver's licence as he had been disqualified from holding or obtaining a driving licence pursuant to Section 8 of the Road Traffic (Driving Offence Points) Ordinance, Cap. 75.

6. The 1st and 2nd appellants and Miss Tsui all gave evidence to the effect that they had travelled together in the Mercedes Benz to Tai Po that morning with the 2nd appellant driving Miss Tsui in the front passenger seat and the 1st appellant in the rear seat. The car is owned by one of the 1st appellant's companies. Miss Tsui is an associate of the 1st appellant in a real estate business and the 2nd appellant is a merchant. The purpose of the visit to Tai Po was for the 1st appellant and Miss Tsui to view real estate and the 2nd appellant to buy provisions. At Tai Po the 1st appellant was dropped off and the 2nd appellant and Miss Tsui continued on in the car, she having decided to view the fish market rather than real estate. Later he drove the car into Wan Tau street and stopped outside the Chun Chun Restaurant, where the 1st appellant was waiting when turning into Wan Tau street the 2nd appellant and Miss Tsui say they saw PC275 standing on the corner.

7. The 2nd appellant left the car to go shopping and the 1st appellant got into the driver seat to chat to Miss Tsui. It was then he says PC275 come up and asked for his driver's licence and identity care. He told PC275 he was not the driver and and then left the scene buy entering the Chun Chun Restaurant in an endeavour to locate his brother. This took him some time after which he received a call on his mobile phone from Miss Tsui to say she had been arrested. They did not return to the car immediately out instead spent some time trying to locate a lawyer. That such attempts were made at this time was confirmed by a solicitor's clerk. They then went to the Tai Po Police Station where the 1st appellant told the Duty Officer he was not the driver and the 2nd appellant said he was.

8. The first point taken by Me. Hampton is that, in respect of the 1st charge, the 1st appellant was wrongly charged under $42 of the Road Traffic Ordinance, Cap. 374. This section provides that no person shall drive a motor vehicle on a road unless he is the holder of a driver's licence in respect of that class of vehicle. The submission is that the 1st appellant should have been charged under Section 12 of the Road Traffic (Driving Offence Points) Ordinance, Cap. 375 which provides that any person who drives a vehicle while disqualified under Cad. 375 commits an offence. The Magistrate accepted that the 1st appellant would have been more properly charged under Section 12 but did not amend the charge and proceeded to convict on the charge as laid.

9. Section 8(7) of Cap. 375 provides that when a person is disqualified pursuant to the provisions of Section 8 his driving licence Shall be of no effect so long as the disqualification continues in force. On the 25th of December 1988 the licence which the 1st appellant had held up to his disqualification was of no effect and invalid. This is the same as saying he had at that time no licence at all. While Section 12 of Cap. 357 would have been the more appropriate section under which to lay the charger, I do not consider it fatal to the prosecution case to have charged the 1st appellant under Section 42 of Cap. 356.

10. It is submitted that the magistrate should have given himself a Turnbull warning on identification, the defence case being that PC275 had mistaken the 1st appellant for the 2nd appellant, they being similar in appearance, when the car was driven around the corner into wan Tau street. This submission may have had some substance if the magristrate had accepted the defence evidence on this point. He did not, he accepted the evidence of PC275 and on that evidence identification could not be an issue.

11. The appellants complain that in reaching his decision the magistrate weighed the evidence of the defence against that of the prosecution. I do not agree. The magristrate did detail some of the matters which helped him in evaluating the credibility of the derence withess, it was proper for him to do so. Although he did not in his statement of findings specifically deal with the challenge made on PC275 in respect of the ignition keys and the colour of the car, he was satisfied that PC275 was an honest and credible withess who had given him a true account of what had happened. In respect of the appellants and Miss Tsui he was satisfied that their evidence was ''an elaborately contrived litany of lies''. The evidence from the defence in no way raised any doubts in the magristrate's mind as to the truth of the prosecution case.

12. In respect of the charge of perverting the course of public justice it is argued that the evidence of the prosecution witnesses was contradictory and insufficient to establish the necessary intent. What is not in dispute is that the 1st appellant told the Duty Officer he was not the driver at the time of the incident and that the 2nu appellant said he was. Having found these statements to be lies the magristrate was entitled in the circumstances to draw as the only reasonable one, the inference that the appellants had intended to pervert the course of public justice as alleged in the charge.

13. Finally it is urged upon me that there must be left a lurking doubt. I disagree. I am in no doubt that the magristrate reached the correct verdicts in this case.

14. The appeals are dismissed.