THE QUEEN v. MAR KAM CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 82 of 1986

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JUDGMENT

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1. The Appellant was charged in the Magistrates' Court with three offences:

(A)    taking a conveyance without authority, contrary to section 14(1) of the Theft Ordinance;

(B)    driving a motor vehicle without third party insurance contrary to section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance; and

(C)    driving a vehicle without a valid licence.

He pleaded not guilty to each of the charges but was convicted on each after trial.

2. In respect of the (A) charge he was sentenced to imprisonment for 12 moths. In respect of the (B) charge he was sentenced to imprisonment for 9 months to be served concurrently with the sentence on the (A) charge and in addition was disqualified from holding or obtaining a driving licence for all classes of vehicles for 3 years and ordered to undertake a driving test after the period of disqualification. On the third charge he was fined.

3. We are no longer concerned with the third charge because his appeal is confined to the lst and 2nd charges and his appeal in respect of each of them is against conviction and sentence.

4. His appeal attacks the finding of taking the vehicle in the 1st charge and the finding of driving it in the other charge. On the evidence before the learned Magistrate, the vehicle in question was found on Route Twisk at about 5:30 a.m. on the lst of November, 1984. severely damaged and obvious damaged through having run off the road and crashed into the hillside. To one was in or near the vehicle at the time it was found. Within a couple of hours of the vehicle's being founds a fingerprint was lifted from the buckle of the seat belt on the driver's side of the vehicle, that is, the buckle on the left hand side of the driver's seat. There is no doubt that that fingerprint belonged to the Appellant. It was the fingerprint of his left middle finger.

5. Some months later, in July of 1985, the Appellant was questioned by the police and during the questioning he gave three statements under caution which were admitted in evidence. In none of those cautions was it mentioned where the vehicle was found, nor was it mentioned that the Appellant's fingerprint had been found on the buckle of the safety belt.

6. The Appellant was never told about the finding of the car nor was he asked to comment on the fact that his fingerprint had been found on the buckle of the safety belt.

7. At the trial the Appellant gave evidence and explained how his fingerprint came to be on that buckle. He said that on the night of the 31st of October and the morning of the 1st of Fovember 1984 he was out with a friend named LEUNG and two girls for a joy ride. During the course of their joy rids, with LEUNG as the driver of the car, they came across a vehicle which he identified from photographs exhibited at the trial as the vehicle in question. The vehicle had crasher into the hillside. The driver was still in the driving seat and he said that he and LEUNG went to assist the driver who appeared to be in a concussed condition. In the course of assisting LEUNG to remove the driver from the damaged vehicle, he, the Appellant, unbuckled the safety belt surrounding the driver.

8. He said that after the driver was removed from the vehicle some friends of the driver arrived in another vehicle and took the driver from the scene.

9. The learned Magistrate made four findings of fact which have not been challenged in the course of this appeal. After making those findings, he then went on to say this:

"The question for me to decide was whether the Appellant had spoken the truth that he helper undo the safety belt to help the driver who was injured in the car of 2706. Having considered the Appellant's evidence carefully and taking it at its highest I found he had not spoken the truth. Furthermore I found, and the only inference I could draw from the court records dated 5.9.85 that the Appellant through his legal representative Mr Roderick Wu of Michael O'Cock & partners applied for an adjournment based on insufficiency of time and one vital witness. That witness I can only infer to be Mr. LEUNG.

I found a major contradiction in the Appellant's evidence when he said that on the evening of 31st October, 1984 he was with his friend LEUNG King -yin having drinks in a night club, but he went on finally to say Mr. LEUNG drowned in August in a Reservoir whilst fishing.

 

To use the Appellant's own word I did not accept his fishing evidence and I convicted without any hesitation."

10. The Appellant as one ground of his appeal contends that the learned Magistrate materially misdirected himself on a question of fact when he stated that he found the major contradiction just quoted.

11. This submission, in my view, has merit. The trial took place on the 31st of October, 1985. As Counsel for the Appellant points out the Appellant did. not say in his evidence that Mr. LEUNG had drowned in August in 1984. If the Appellant was referring to August 1985 - and he could well have been - there was no contradiction at all.

12. Mr. Leclaire, for the Respondent, points out that there was a contradiction arising from the fact that the application was made in Septemeber 1985 for the purpose of seeking an adjournment to locate a vital witness. The Respondent contends that there was a contradiction if that vital witness was Mr. LEUNG.

13. However, the Appellant did not say when it was that he learned of the drowning of Mr. LEUNG. If he learned of that after the application in September there was no contradiction at all.

14. The learned Magistrate therefore has misdirected himself in finding that there was a major contradiction.

15. The Appellant also contends that the learned Magistrate made "an incoherent finding of fact when he stated that he inferred that when the Appellant applied for an adjournment on 5th September 1985" that the witness referred to was Mr. LEUNG. Again, I think this ground has substance. Assuming the relevance of the reference, it was not the only inference that the witness was LEUNG. The Appellant's evidence was that he was in the company of three people, LEUNG and two girls. There was nothing in the reference to suggest that he had in mind, LEUNG, rather than say one of the two girls. The learned Magistrate, in my view, was not entitled to say that the only inference was that the witness was I LEUNG.

16. The Appellant also argues as a ground of his appeal that the Magistrate nowhere adverted to the onus and standard of proof required in a criminal case and may well have misdirected himself when he said "The question for me to decide was whether the Appellant had spoken the truth". The learned Magistrate was entitled to take the view that the Appellant's version was not credible and reject it. But having done that, he then had to look at the remaining evidence which he did accept and decide, applying the law as to the onus and standard of proof, whether that remaining evidence established the Appellant's guilt.

17. The coverall impression created by the Magistrate's findings, and in particular his final sentence, "To use the Appellant's own word I did not accept his fishing evidence and I convicted without any hesitation", is that the learned Magistrate was of the view that having rejected. the Appellant's evidence a conviction necessarily followed.

18. Mr. CHENG Huang for the Appellant, has referred me to a decision in the case of Lesile David Court⁽¹⁾ where it was held that the trial Judge should have ruled that there was no case to answer on a charge of possession of a motor  car where the only evidence of possession against the Defendant was a fingerprint of his found on the back of the rear vision mirror in the front of the vehicle.

19. Whether the evidence here of the finding of the fingerprint was sufficient to found a conviction is a question that I do not need to decide. The finding of the fingerprint was a primary fact from which the Magistrate could have drawn the inference, having regard to the finger which made it and the position in which it was found so as to be satisfied beyond and a reasonable doubt that the Appellant had been driving that Motor vehicle and therefore also had taken it.

20. But the Magistrate did not advert to the question as to whether that finding of primary fact led to the irresistible inference that the Appellant did take and drive that car.

21. I agree, therefore, with the submission by the Appellant that taken together the learned Magistrate's misdirections and failure to direct himself properly regarding the onus and standard of proof render these convictions unsatisfactory. I accordingly allow the appeal and quash the convictions and sentence and the other orders made consequent thereon.

(1)    (1960) 44 Cr. App. R.242