HKSAR v. LI YU CHING AND ANOTHER

HCMA523/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 523 OF 1998

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J U D G M E N T

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1. On 14th February 1997, the 1st Appellant was disqualified for six months under the Road Traffic (Driving-offence Points) Ordinance Cap.375 ("the Ordinance"). The disqualification was up to and including 13th August 1997. However, on 12th July 1997, the 1st Appellant drove a vehicle on a public road and was subsequently charged with driving whilst disqualified and driving a motor vehicle without third party insurance. He was convicted of those offences on 14th August 1997 and the Magistrate who convicted him then disqualified him for driving for another 12 months for both offences, the period of disqualification being concurrent. Other penalties on top of the disqualification were also imposed.

2. The first ground of appeal against conviction advanced by Mr Macrae is that the disqualification order made on 14th August 1997 was unlawful since the offence with which he had been charged under s.12(2)(b) of the Ordinance did not carry a disqualification penalty. The authority for that proposition is R v. Kwok Kam Sun, Mag. App. 1690 of 1990 which was heard by the Court of Appeal. The Court held that there was no power to order disqualification where the contravention is under s.12(2)(b) of the Ordinance. The Court said that there was no provision for mandatory or discretionary disqualification on a conviction for driving whilst disqualified under that Ordinance and also an offence under s.12(2) of that Ordinance is not included in the list of offences for the commission of which a Court may impose disqualification under s.69 of the Road Traffic Ordinance. However the Court held that the conviction fine and disqualification on charge (b) which was a charge of using a motor vehicle on a road without third party insurance, contrary to s.4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 remained unaffected by their decision that there was no power to order disqualification under Cap.375 and therefore the disqualification under Cap.272 was still a good and valid order.

3. That effectively deals with and disposes of Mr Macrae's second ground which is that in the circumstances, since the Court which dealt with the 1st Appellant on 14th August 1997 purported to make an unlawful order of disqualification albeit concurrent with another order of disqualification for using a motor vehicle without third party insurance under s.4(1) and (2)(a) Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap.272, the whole order was invalid.

4. Even without the authority of the Court of Appeal in Kwok Kam Sun (supra), I would have held that the order of disqualification under Cap.272 was a good and valid order and was not affected by the difficulties mentioned of imposing a disqualification order under Cap.375.

5. On 23rd December 1997, the 1st Appellant was allegedly driving a vehicle on a public road and was charged with three offences : driving whilst disqualified under s.44(1)(b) of Cap.374 and driving a motor vehicle without third party insurance, contrary to s.4(1) of Cap.272. In addition, he and his wife, the 2nd Appellant, were charged with the third offence of doing an act tending and intended to pervert the course of public justice. They were convicted of the respective offences on 12th May 1998 by Ms. Thompson sitting at Fanling Magistracy. It is against those convictions that the two Appellants have now appealed.

6. The evidence adduced by the prosecution has been summarized by the learned Magistrate in her Statement of Findings and the prosecution's case was as follows :

"In the evening of the 23rd December 1997, Police set up a road block on the Lam Kam Road, on the Yuen Long-bound carriageway, near Kadoorie Farm. In accordance with their usual practice at this particular location, 2 officers in plain clothes, PW1 and PW2, were instructed to keep observation at the position before the road block, close to the turn off to a village called Ng Tung Chai. They chose to hide in the undergrowth beside a bus stop, where there was a pulling-in place for buses to stop. They were to specifically watch out for drivers who may try to avoid the road block or who may dispose of illegal objects before getting there.

At about 9 pm, PW1 and PW2 saw a Toyota private car, registration GA3605, pull in and stop near to the bus stop. The male driver, later identified as the D1, got out of the driving seat, walked around the rear of the car and got into the front passenger seat. A woman, later identified as D2, moved across into the driving seat and drove away towards the road block. Using his beat radio, PW1 informed the Sergeant controlling the road block about what he had seen. The car was stopped and inquiries made of its occupants by PW3 and 2 other uniformed officers, PW4 and PW5. D1 admitted that he was disqualified from driving but denied that he had been driving before they stopped at the bus stop. D2 claimed that she had been driving all along and that they had only stopped because they thought that there may have been a problem with the car. D1 had got out of the car but only to check whether anything was wrong with it. D1 and D2 were then arrested."

7. Mr Macrae's third, fourth and fifth grounds of appeal relate to the conviction on the third charge. These grounds of appeal are :

"3. There was no sufficient evidence to convict the 1st appellant upon charge 3. At its highest, the evidence was that he had merely 'denied' driving and/or changing seats with the 2nd appellant. There was no evidence at all that he had 'made a false representation to the police officers in an enquiry of a traffic offence, that Wong Man Yin was the driver of a private car GA 3065 at Lam Kam Road near Ng Tung Chai.

4. Accordingly, the learned Magistrate erred in fact in finding that the 1st appellant 'claimed that D2 had been driving at the material time' and erred in law in finding that, by such representation, he intended to pervert the course of justice.

5. The evidence against the 2nd appellant upon charge 3 was unsafe and unsatisfactory in as much as PW5 merely reported what the appellant had 'roughly' said."

I have decided to deal with those three grounds together because in dealing with those grounds, it will be necessary to look at some of the evidence adduced by the prosecution.

8. The evidence of PW3 Sergeant 20277 was that during the investigation of the two Appellants, both of them denied having their seats changed before the road block. He said that he had assigned PW4 to question the 1st Appellant and PW5 to question the 2nd Appellant. He said that after these inquiries by the two PCs, he, the Sergeant, approached and explained to the 1st Defendant why the vehicle was intercepted because two plain clothes officers at the observation post had witnessed D1 driving the vehicle and exchanging seats with D2. He said that the 1st Defendant denied he drove the vehicle and denied exchanging seats with the 2nd Defendant. He said that after the party arrived at the police station, D2 still insisted that D1 did not drive the car and that D1 did not exchange seats with her.

9. PW4 PC48452 gave evidence that at the road block he told D1 to get off the car then he asked D1 some questions. He asked him about whether earlier on he, D1, had exchanged seats with the woman at a position next to Ng Tung Chai Village, and he asked D1 whether he possessed a valid driving licence. D1 told him that he had been disqualified. PW4 said at a later point, on the instructions of PW3, he declared arrest on D1 for the offence of driving whilst disqualified and cautioned him. The response by D1 was that he denied he had driven the vehicle.

10. The evidence by PW5 PC53959 was that he questioned the 2nd Defendant. He asked her whether she had stopped before approaching the road block and she replied "Yes", and she said that there was some problem with the car and so she stopped before the road block. She said that after she stopped, D1 alighted from the vehicle and had a look and after checking, D1 found that there was nothing wrong with the vehicle and so D1 got back onto the vehicle and she drove in the direction of the road block. PW5 said that the second thing he asked D2 was whether D2 was the driver of the vehicle between the stopping of the vehicle and its being driven towards the road block, and D2 replied that she had driven the vehicle starting from Wong Tai Sin up to the point when it was intercepted by the police. PW5 said that the third question he asked D2 was whether she knew that D1 had been disqualified and D2 replied that she knew that.

11. The dispute at the trial was not so much what the two Appellants had said to the police officers at the road block, but whether at the observation post before they reached the road block, the two of them had exchanged seats. It was therefore the evidence of PW1 and PW2 who observed what was going on at the observation post which was challenged. The two Appellants themselves gave evidence and in their evidence, they did not deny that at the road block they were questioned by the police officers and they denied that D1 had ever driven the vehicle and that they had exchanged seats at the observation post. D1's evidence was that at the road block he was told to get off by the Sergeant and after he got off the Sergeant asked him whether he possessed a driving licence. He replied that he had been disqualified. The Sergeant told him that he had seen the car stopped before the road block and asked D1 whether he had exchanged seats. D1's evidence was that he said that he did not drive the car all along and he did not exchange seats.

12. D2's evidence was that at the road block after she got off the vehicle, PW5 asked her whether she was the person who had driven the car before they arrived at the road block and she replied "Yes". Her evidence was that PW5 then said that he suspected that she had exchanged seats somewhere before the road block and D2's evidence was that she replied "No". She gave evidence that PW5 then said to her that there was someone who had observed their changing seats and D2's evidence was that she then swore that she was the one who had driven the car all along.

13. The particulars of the third charge are that the two Appellants did an act which had a tendency to pervert the course of public justice in that they knowingly made a false representation to the police officers in an inquiry of a traffic offence, that D2 was the driver of the private car GA 3605 at Lam Kam Road near Ng Tung Chai. Mr Macrae submits that there was no evidence to prove that the 1st Defendant did what he is alleged to have done, namely, make a false representation to the police officers. He submits that because of the particulars of the charge, the allegation must be either the two Appellants jointly made the representation or one aided and abetted the other because the evidence was that each Defendant made a representation separately to a different police officer. He submits that D1's actual words were not recorded and if the evidence showed anything, it was only that he denied the allegations. He submits that if D1 had been charged with another act, that is changing seats with D2, then arguably the charge might be sustainable. Mr Hui for the prosecution submits that the prosecution was relying on a course of conduct pursued by both Defendants and that the representation was by words as well as by conduct. He submits that the Defendants had jointly led the police officers to believe that D2 was driving the whole time and D2 herself made a positive claim that she was the driver and that D1 did not drive at all. Therefore Mr Hui submits this was not a bare denial situation but one where the two Defendants had made positive claims.

14. In my judgment, it was the whole series of conduct on the part of the two Defendants that the prosecution was relying upon, starting from the time when they stopped the vehicle and exchanged seats and culminating in the two of them denying that D1 had ever driven the car and that they had exchanged seats at the observation post. The whole series of acts on the part of the Appellants constituted the offence of doing acts which was intended and which tended to pervert the course of public justice.

15. In R. v. Sharpe and Stringer Vol.26, CAR 122, where the charge was conspiracy to defeat the ends of public justice by concealing and destroying evidence of the commission of a crime, Du Parcq, J. said :

"... The question for this Court, therefore, is whether persons who conspire to destroy evidence of the commission of a crime, and get persons to conceal a crime, and attempt to mislead a police officer, are guilty of the indictable offence of conspiracy? In the view of this Court, there can be no doubt that they are so guilty."

Further on, Du Parcq, J. said :

"... All that is left, therefore, of the argument before the learned Judge, with which this Court has fully acquainted itself, is that there can be no offence of conspiracy to defeat the course of public justice unless proceedings are pending or have been commenced. In other words, it is said that no crime has been committed by a person who conspires with others to help him to conceal what has taken place and persuades other persons to make untrue statements, unless proceedings have already begun. That seems to this Court to be a hopeless proposition, a proposition so absurd that it cannot form a part of the law of this country.

Public justice requires not only that people should not take steps to conceal a crime or destroy evidence once a summons has been served upon somebody, but also that every crime should be suitably dealt with, and a man who obstructs public justice as soon as a crime is committed and endeavours to avoid the consequences of his wrongdoing by conspiracy with others is just as much guilty of an offence as if he waits until after proceedings are actually pending. ..."

16. In R. v. Rafique and Others (1993) 97 CAR 395 the three defendants were charged with perverting the course of public justice by impeding the police investigations into the death of a person. The Court of Appeal in England at p.399 said :

" Applying, as we do, the principle stated by Pollock B. in Vreones, we conclude that an act is not beyond the ambit of those tending to pervert the course of justice by reason of its being performed after the crime but before investigations into the alleged crime have begun. Whether an act has a tendency to pervert the course of justice cannot depend upon whether investigation of the matter which may become the subject of court proceedings has begun. If an intention to pervert the course of justice in relation to that matter is proved, the act has the same quality whether performed before that alleged offence is investigated, or even discovered, as it would have at a later stage."

Further on at p.401, the Court said :

"... However, on the facts of the present case, it must follow from a finding that there was an intention to impede police investigations that there was an intention to pervert the course of public justice. On these facts, there can be no explanation for intentionally impeding police investigations other than an intention to pervert the course of public justice."

Finally, the Court said :

" It was in the sense that what impedes police investigations will usually also have a tendency to pervert the course of public justice that we read the statement of Lord MacDermott C.J. in Bailey that the administration of public justice:

'... comprehends functions that nowadays belong, in practice, almost exclusively to the police such as the investigation of offences and the arrest of suspected persons.'"

The law on charge 3 being what I have just stated, I am satisfied that there was ample evidence and a sufficient basis in law, for the learned Magistrate to find the two Appellants guilty of charge 3.

17. Ground six is that the learned Magistrate wrongly gave the impression that she had cast an onus and a high onus upon the Appellants when she said that :

"having heard from the Defendants themselves and, indeed their two witnesses, I am not satisfied that they stopped just before the road block simply to check the noise."

This ground is really unarguable because immediately following those words, the learned Magistrate said :

"But I bear in mind that they need prove nothing, the burden remains on the prosecution to prove all the elements of all these charges beyond reasonable doubt."

18. Ground seven is that the learned Magistrate's evaluation of the evidence of PW1 and PW2, in particular as to the discrepancies in their evidence which she acknowledged but dismissed, was flawed.

19. In my judgment, the learned Magistrate was entitled to accept the evidence of PW1 and PW2. She had heard their evidence and she had observed the demeanour of the witnesses. An Appellate Court is not in a position to overturn a finding of fact based upon evidence which was heard and observed by a trial Court. In so far as discrepancies are concerned, it is quite clear from what the learned Magistrate said in open court when she delivered her verdict and also in her Statement of Findings that she was fully aware of these discrepancies and she dealt with them in her judgment. Having dealt with the discrepancies and having shown that she was conscious of their existence, in my judgment she was quite entitled at the end of the day to accept the evidence of PW1 and PW2.

20. The last ground of appeal was that the learned Magistrate's evaluation of DW3 and DW4 (whose native tongue is not English) was unwarranted and unfair, in circumstances where neither witness was cross-examined other than by the prosecution putting its case. This really goes back to the question of whether a trial court is entitled to accept or to reject the evidence of witnesses that it has heard. The learned Magistrate had heard the evidence of DW3 and DW4 and she had observed their demeanour. These two witnesses were put forward as supporting witnesses of the two Appellants. The learned Magistrate was entitled to reject the evidence of the two Appellants in so far as they testified that what happened at the observation post was different from what was observed by PW1 and PW2. She was similarly entitled to reject the evidence of DW3 and DW4 and I find that this ground cannot succeed either.

21. The final ground is that the verdicts were unsafe and unsatisfactory. I have gone through the transcript of the trial and I have heard the submissions of Counsel. In my view, the verdicts are neither unsafe nor unsatisfactory and the appeals against convictions must be dismissed.

Appeal against sentence

22. The 1st Appellant was sentenced by Mr Geiser on 14th August 1997 for the offence of driving whilst disqualified to a two months term of imprisonment, to be suspended for 12 months. He was sentenced for the present offences by Miss Thomson on 26th May 1998 to two months' imprisonment on the first charge of driving whilst disqualified, 14 days' imprisonment for the second charge of driving a motor vehicle without third party risk and two months for doing an act tending and intended to pervert the course of public justice. She also activated the suspended sentence passed by Mr Geiser, but ordered that all sentences be served concurrently with the result that the total term of imprisonment imposed upon the 1st Appellant was still two months.

23. He has been granted leave by me to appeal against the sentences imposed by Miss Thomson out of time. He has a heart condition and had an open chest operation on 15th December 1994 and the medical report by Dr Chau Wan-yeung dated 22nd January 1999 says that he still suffers from an impaired liver function and he has a liver cyst, and also suffers from hypertension and impaired exercise tolerance. Dr Chau is of the view that life in a custodial institution will be much more hazardous to the 1st Appellant's health than it would be for anyone else who does not have such medical conditions. The other certificate by Dr Ng But-yee really does not take the matter very much further save that it seems to suggest that the 1st Appellant is still suffering from pain on occasions because of his medical condition.

24. The learned Magistrate was not unaware of the 1st Appellant's medical condition even though she was not supplied with the same details that I have been supplied with, and the same can be said about Mr Geiser not being unaware of the 1st Appellant's medical condition.

25. I am sympathetic to what has been said on the 1st Appellant's behalf by Mr Macrae who has said everything possible on behalf of this Appellant. There is no appeal against Mr Geiser's order of imposing a suspended sentence and it seems to me that my difficulty, if I were to accede to Mr Macrae's pleas, would be to justify reversing Miss Thomson's order to activate the suspended sentence. It was during the 12-month operational period of the suspended sentence that the 1st Appellant committed the present offences. In fact, the present offences were committed a little over four months from the time when Mr Geiser imposed the suspended sentence. That is the first difficulty, that there seems to have been every reason for Miss Thomson to activate the suspended sentence. The other difficulty for the 1st Appellant is the fact that for the third charge of perverting the course of public justice, the usual penalty is one of immediate imprisonment unless there are very unusual circumstances prevailing in a particular case.

26. The condition that the 1st Appellant suffers from would only make his having to serve a term of imprisonment harsher than for another person without such condition, and it does not occur to me (and Mr Macrae does not suggest this) that he would not receive proper medical attention in a penal institution in Hong Kong.

27. The learned Magistrate in making all the sentences concurrent was, in my view, trying to be as humane as she possibly could in the circumstances of this case. Even if one could interfere with the two months and 14 days' terms of imprisonment imposed for the driving whilst disqualified and driving without third party risk offences, as I said, I will have extreme difficulties in interfering with Miss Thomson's decision to activate the suspended sentence and her decision to impose a two month term for the perverting of public justice charge. I think in a sense this Appellant should consider himself lucky that the sentences imposed were not of greater gravity. It would be, of course, hard for him at this stage to have to serve his two months' imprisonment after, as Mr Macrae has pointed out, the lapse of over a year since the offences were committed.

28. But as I said, sympathetic as I am, I fear that there is really nothing I can do to alleviate the difficulties facing this Appellant. For those reasons, I have to dismiss the appeal against sentence.