HKSAR v. WONG KWOK MING

HCMA 711/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 711 OF 2001

(ON APPEAL FROM WSS 3218/2001)

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J U D G M E N T

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1. The Appellant was convicted of a charge of careless driving after trial. He now appeals against his conviction. At the hearing of this appeal, Mr Cheung, the Appellant's counsel, applied for the hearing of the appeal to be conducted in English. As counsel for the Respondent had no objection, I therefore allowed the application.

2. At the trial, the prosecution relied mainly on the evidence of two police officers who on the day in question, saw a private car namely a "Honda Accord" with registration number "DW250" turning from Electric Road into Wing Hing Street. The time was about 5:45pm on the afternoon of 12 October 2000. At that time, the two officers were crossing the road at the pedestrian crossing. At that time the light was showing green for pedestrians to cross. According to PC54741, the private car was travelling at about 50km and despite the fact that the pedestrian crossing light was green, proceeded to travel across the pedestrian crossing thus causing him to step backwards. PC54741 said he shouted at the private car to stop but it did not stop and continued on its way. When the private car drove past him, the private car was only about 1 metre away from him. He had a clear opportunity to note the registration number of the private car. PC54741 said he immediately checked over his beat radio to see if this private car was a stolen vehicle and the answer that came back was that it was not registered as a stolen vehicle.

3. PW2 was PC1640. He was walking together with the PC54741 crossing at the pedestrian crossing when the pedestrian crossing light was green. He saw that the private car DW250 turned into Wing Hing Street and ignoring the pedestrian crossing light proceeded to cross the pedestrian crossing in front of him, causing him to step backwards in order to avoid being hit by DW250. PW2 said the closest distance that the private car was to him when it was passing him was only one foot. PW2 said he clearly saw the front and back registration plates of the private car and that it was DW250. Both witnesses said that the lighting was sufficient at the time although there was a slight drizzle. The evidence also shows that the traffic on Electric Road can only go straight down Electric Road and is not allowed to turn left into Wing Hing Street as DW250 did. The prosecution also produced Exhibit P6 which was filled in by the Appellant in which he admitted he was the driver on the day of the incident, but he also added in his own writing that he had never driven the car to the place where the offence was committed.

4. After the Magistrate ruled that there was a case for the Appellant to answer, the Appellant elected to give evidence. He said on the 12th of October 2000, he left his office at the ICAC at about 5:45pm. He collected his car from the car park and proceeded to Kwai Chung to pick up his wife. He also produced records to show that his computer record shows that he logged out at 17:40. He said that as that day was the birthday of his daughter, he was going to take the family out for dinner. He arrived at Kwai Chung to pick up his wife at 6:05pm. He denied that he had ever driven his car on that day at about 5:45pm to North Point. The Appellant also called as his witness, a colleague of his at the ICAC. His evidence was that according to the computer record of the ICAC, the Appellant left work at about 17:40.59pm. He agreed that he could only tell the court that the Defendant left at that hour from the computer record which was produced by the Appellant, but he agreed that if the computer was left unattended for 10 minutes, it would log out by itself and thus the log out time would be shown on the computer 10 minutes after it remained unattended.

5. The Appellant also called his wife as a witness. She confirmed that the 12th of October 2000 was indeed the birthday of their daughter and the Appellant arrived at her office to pick her up at 6:00pm in the evening. She said that her normal hour of work is up to 5:30pm every day and that the Appellant's hour of work finishs at 5:15pm.

6. The learned Magistrate, after a careful analysis of the evidence, particularly the discrepancy in the evidence between the prosecution witnesses and the defence evidence, concluded that the Appellant was indeed the driver of DW250 which was in North Point at the time when the prosecution witnesses saw the car turn into Wing Hing Street and that he was driving the car carelessly at the time.

Grounds of Appeal

7. The main grounds of appeal are:

(a) that the learned Magistrate had failed to warn himself of the risk of identification in a fleeting glimpse situation along the lines of the Turnbull Direction,

(b) that the learned Magistrate gave undue weight to the positioning of the registration plate numbers,

(c) that the learned Magistrate erred in treating the testimony of PW1 and PW2 as deserving of special consideration by virtue of their being police officers and therefore should be more readily believable,

(d) that the learned Magistrate was wrong, not to attach any significance to the good character of the Defendant by virtue of his office and as such there was less likelihood of his not telling the truth,

(e) that the learned Magistrate had placed undue weight on Exhibit P6 on the fact that the Defendant admitted that he was the owner of the car being driven on that day.

8. The learned Magistrate was fully aware of the Appellant's good character and she was very conscious of the fact that the Appellant is an ICAC officer and, in fact, in her Statement of Findings, she listed all the training that he had had up to the time of the trial. In the circumstances of this case, it is not necessary for the learned Magistrate to specifically refer to the good character of the Appellant, I find no merit in this ground of appeal.

9. As to the Appellant's ground of appeal that the learned Magistrate should have given herself a Turnbull Direction, I also find that there is no merit in this ground. The learned Magistrate very carefully analysed the evidence of the identification by both police officers of the numbers of the car, of particular significance was the placement of the numbers. What the prosecution witnesses said was unusual was that the letters were not on top of the numbers, but rather it was in a horizontal line across. I agree with the counsel for the Respondent that as far as the colour of the car was concerned, the discrepancy was not an important one because the officers identified the car by the make which is a "Honda" the model, which is an "Accord" and the registration number of the vehicle.

10. As for the Magistrate's comment that she did not find the Appellant's evidence convincing in that he had travelled from Central to Kwai Chung in about 10 minutes. This was not knowledge peculiar to her but she was simply applying her common sense. In any event, after a careful assessment of the evidence of the prosecution witnesses, she ultimately convicted the Appellant on the evidence of both police officers.

11. I was also not persuaded that the Magistrate had accepted the evidence of the police officers as deserving of special consideration by virtue of their being police officers. I can find no evidence of that. In fact the learned Magistrate had carefully analysed their evidence and found that their evidence was credible and honest and therefore she accepted the evidence.

12. What the learned Magistrate said at page 43 L-M was that: "being trained police officers, they unlike a lay person, after the occurrence of an incident, the first thing they would do is to clearly look at the car registration plates of the car". So she was merely talking about the reaction of a trained police officer from that of a lay person and she was not saying that police officers are more credible.

13. In all the circumstances, I find that the conviction is neither unsafe nor unsatisfactory and the appeal against conviction is dismissed.