ATTORNEY GENERAL v. TSANG WAN HING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1517 OF 1990

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JUDGMENT

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1. This is an appeal by way of case stated from a magistrate. The respondent had pleaded not guilty to an information in the North Kowloon Magistrates Court on the 5th September 1990 which was in the following terms : -

INFORMATION for that you on the 10th day of March, 1990, at Lai Chi Kok Road near Wing On Department Store in  Hong Kong, did drive a motor vehicle, namely, a public light bus displaying registration mark EK3310 on a road carelessly."

2. At the conclusion of the Crown case, the magistrate ruled there was no case to answer and dismissed the information.

3. In paragraph 7 of the Case Stated, the learned Magistrate set out the evidence which was led on behalf of the prosecution as follows :-

4. At the conclusion of the Crown case, the respondent's solicitor submitted that there was no case to answer relying upon Chung Ping Chuen v. R. Cr.App. 869/1990 wherein it was held that appearance in a court to a summons is evidence that the person who appears is the person to whom he summons is directed, but it is not evidence which by itself establishes that he was the driver.

5. The learned Magistrate held that there was no case to answer because: -

6. The only question arising for this court to answer is whether the magistrate erred in law in holding that there was no case to answer in the circumstances.

7. This appeal has been argued attractively by Mr Cross, Q.C. for the appellant and Mr Oderberg for the respondent. A number of cases have been cited and I propose to go through them in chronological order.

8. The first is Marshall v. Ford (1908)72 JP 480. The facts in that case were not unsimilar from those in the present case. The appellant had appeared before the magistrates court and answered his name when called upon to plead to the information and pleaded not guilty. Evidence was led by a police sergeant to the effect that he had stopped the car in question and asked the driver for and examined his licence.    That he stopped more than 20 drivers of motor cars on the said day and could not swear in Court that the appellant was the driver of the car in question.

9. Another witness, a constable gave evidence that he was on duty with the sergeant and that when the driver of the said car produced his licence, he took a note therefrom of his name and address with the number and date of his licence.

 

    Alverstone L.C.J. in the course of his judgment said:-

The other two judges sitting with the learned Chief Justice also agreed.

10. The next authority is Jones v. Carter (1956) Crim.L.R. 275. The report is very short and I propose to set it out :-

                    "Q.B. Divisional Court: Lord Goddard C.J., Hilbery and stable JJ. : January 31,1956.

C. was charged with driving a car without due care and attention contrary to section 12 of the Road Traffic Act, 1930. The magistrates found that there was a collision between two cars, one driven by D. and the other driven by A., due to the driving of a third car, RUM 125,. The car, RUM 125, did not stop despite audible warning given by D., and the driver was not seen by any of the witnesses, but the registration number was taken by D.'s wife. No evidence. was given, nor was a certificate under section 41 of the Criminal Justice Act, 1948, as to the identity of the driver of RUM 125 put in before the close of the prosecution case, although such a certificate was referred to in the opening of the case. C. did not give evidence. C.'s solicitor contended that there was no case to answer as the driver's identity had not been proved. The magistrates were of the opinion that there was a case to answer, as the cross-examination by c.'s solicitor was at no time directed to the question of the driver's identity. The magistrates rejected the submission of C.'s solicitor, who then reviewed the evidence and asked for a dismissal on the facts. The magistrates convicted C.

 

Held, allowing C. 's appeal, that the court very much disliked giving effect to the point taken by C., because the case was clearly conducted on the basis that C. was the driver, but the court had more than once said that the prosecution had to see that their tackle was in order. Although the court did not understand why the magistrates had not allowed the prosecution to put in the certificate under section 41, nevertheless, as the point had been taken and the court  did not wish to encourage sloppy prosecutions, the appeal would be allowed, but without costs."

11. In that case, of course, there was no evidence as to who was the driver at the material time. Clearly in that case, the appearance of the defendant to the summons merelyidentified him as the person named in the summons. There was no evidence to establish that he was the driver of the car.

12. In Criminal Appeal No. 176 of 1864 Attorney General v. Leung Man-kwong & Anr., two summonses were issued against two named persons, partners in an engineering company, charging  them with two contraventions under the Buildings Ordinance. At the conclusion of the case for the prosecution, the learned magistrate, whilst being satisfied that the facts adduced established a prima facie case against the two persons named in the summonses, was not satisfied that there was any, or any sufficient evidence before him to identify the two respondents then present in Court before him as the two defendants, partners in the engineering company, against whom the two summonses had in fact been issued. During the course of the case for the prosecution, a business certificate, issued under the Business Registration Regulations Rules of 1959 was in fact produced in evidence. That certificate certified that the two persons by the names (of those stated in the summonses) were in fact the two partners, and the only two partners of the engineering company concerned.

13. Rigby J. said:-

"This seems to me essentially a question of elementary common sense. The two summonses had been issued against two specified persons, Leung Man-kwong and Leung Man-wong, partners in the firm of Universal Engineering Company who were charged with two alleged contraventions against the Buildings Ordinance. The case was called upon in open court. The names of the defendants were read out; the two respondents answered to those names and upon the charges then being read out, they pleaded not guilty to those charges. Furthermore, as I have already indicated, during the course of the case for the prosecution the certificate, to which I have already referred, was produced in evidence, giving the names of the two persons specified in the summonses, to wit, Leung Man-kwong and Leung Man-wong as the only partners in the Universal Engineering Company - being specifically referred to in the particulars of both charges. It would, I think, be a negation of ordinary common sense to hold, in such circumstances that there was not sufficient prima facie evidence that the two respondents who had pleaded to those charges were not in fact the two defendants, against whom the summonses had been issued as partners in this particular company."

14. He went on to allow the appeal and remitted the case to the magistrate what a direction to call upon the respondents to answer to the two charges preferred against them.

15. In that case, of course, in addition to the fact that the defendants answered to the summonses when they were called, there was evidence that persons with precisely the same names and addresses were the only two partners in the business. That is what was required to be proved in Court.

16. The next case cited is Saunders v, Johns (1965] Cr.L.R. 49, a decision of the Queen's Bench Division consisting of Lord Parker C.J., Ashworth and Brabin JJ., dated November 19, 1964. The report is also very short and I set it out in full :-

"The defendant was charged with exceeding the speed limit: at the beginning of the hearing his solicitor said that the issue was one of identity. A constable gave evidence that he had stopped the driver of a car which had been speeding; he gave no evidence identifying the defendant as the driver. The defendant's solicitor submitted 'no case,' but was overruled, the justices giving as their reasons that the defendant had appeared at court, that he had received the statement of facts, and that the driver of the car had prima facie committed an offence. The defence closed its case without calling any evidence. The justices then recalled the constable, who gave further evidence that he had inspected the driver's licence, and that the name and address therein were the name and address of the defendant. The defendant was then convicted.

 

Held, allowing the defendant's appeal, that no prima facie case had been made out at the close of the prosecution case. The relationship between the name on the summons and the statement of facts did not provide any evidence that the defendant was the offending driver. To recall the constable after the defendant's case was closed was clearly wrong.

 

Per Lord Parker C.J.: As soon as the submission of 'no case' was made the prosecution, or the court of its own motion, should have recalled the constable and obtained the evidence about the licence, showing that there was a prima facie case."

17. Clearly, at the end of the Crown case, there was no evidence to establish the identity of the defendant as the driver. Had there been evidence from the constable before the close of the Crown case that he had inspected the driver's licence, etc., the result might well have been different.

18. The first Hong Kong authority cited is that of Chiu Hon-hung v. R. (1965] HKLR 244, a decision of Macfee, J. In that case the appellant was convicted of a motoring offence by a magistrate. He appealed on the ground that there had been no visual identification of the driver by the prosecution witnesses. The evidence showed that the constable who reported the offence had recorded the licence number of the vehicle, the name of its driver, and the number of his driving licence. It was held that the evidence established that the driver had produced the driving licence to the constable and that the particulars thereof tallied with the particulars of the appellant as set out in the summons. There was, therefore, sufficient evidence of identity of the driver.

19. In that case the learned judge followed Marshall v. Ford (Supra). He also followed the case of Martin v. White (1910)74 J.P. 106 in which Lord Alverstone C.J. followed his own decision in Marshall v. Ford.

20. A further decision from the Queen's Bench Division is Cooke v. McCann [1974] RTR 131.  The headnote sets out the facts as follows :-

"A motorist drove a car the wrong way along a one-way street and was stopped by a traffic warden. The motorist produced a driving licence to the warden. An information was laid and a summons was issued in the name and with the address shown on the driving licence. At the hearing the summons was answered by the defendant. The traffic warden failed to identify any person in court as the driver or person who had produced the driving licence. The justices thereupon decided that there was no evidence as to the driver or person who produced the licence so that there was no case for the defendant to answer, and they dismissed the information.

21. On appeal by the prosecutor:

22. Again Marshall v. Ford (supra) was applied.

23. It was also applied in Creed v. Scott [1976] RTR 485.The headonte succinctly sets out the facts as follows :-

24. Then came the judgment upon which the respondent principally relies, namely Chung Ping-chuen v. R. M A. 869/1980 (unreported). The judgment is very short and I set it out in full :-

"This is an appeal against conviction for careless driving which resulted in a traffic accident. The driver of the one vehicle was a prosecution witness and gave evidence which established careless driving on the part of the other driver. He could not identify the other driver. The learned magistrate in his findings adverts to that fact and goes on to say:

 

 

'I was nevertheless satisfied as to appellant's identity as he had answered to his summons.'

The learned magistrate was in error in considering that sufficient evidence to warrant a finding that the appellant was the person who drove carelessly. Appearance in answer to a summons is evidence that the person who appears is the person to whom the summons is directed, but is not evidence that can by itself establish that he was the driver, see Jones v. Carter (1956) Criminal Law Review 275, Saunders v. Johns (1965). Criminal Law Review 49, Reg. V Chiu Hon Hung (1965) HKLR 244, Creed v. Scott (1976) Criminal Law Review 381. However there was other undisputed evidence which clearly proved the defendant was the driver and I therefore dismissed the appeal."

25. It will be noted that there is no reference in that judgment to Marshall v. Ford or the previous Hong Kong authority Chiu Hon-hung v. R., which applied Marshall v. Ford in Hong Kong.

26. The final case cited was Hays v. Ministry of Transport [1982] 1 NZLR 25 where again the facts are set out in the headnote as follows :-

27. Again, Marshall v. Ford, Cooke v. McCann and Creed v. Scott were applied.

28. Mr Cross for the appellant relies upon Marshall v. Ford and the other cases which have applied that case in support of his contention that the magistrate erred in holding that there was no case to answer.

29. Mr Oderberg for the respondent argues that the authority which must be followed is that of O'Connor J. in Chung ping-chuen (Supra), that being the last of the Hong Kong cases on the subject and that applying that decision to the facts of this appeal, the magistrate was right to find no case to answer and the question stated should be answered in the negative.

30. With the greatest of respect to Mr Oderberg, I cannot accept this contention. First of all I cannot see that there is any proposition of law in the decision in Chung Ping-chuen which enabled the magistrate to hold that there was no case to answer. All that case decided is that appearance in answer to a summons is evidence that the person who appears is the person to whom the summons is directed, but is not evidence that can by itself establish that he was the driver. That must be correct. In the present appeal the evidence that the defendant answered the summons does not stand on its own. There was evidence that the prosecution witness could remember the name of the driver and had jotted down the driving licence number at the time of the incident. That was evidence upon which the magistrate could hold that there was a case to answer.

31. In any event the judge in Chung Ping-chuen's case did not cite Marshall v. Ford or the previous Hong Kong decision of MacFee J. in Chiu Hon-hung. If therefore there is anything in his judgment which is relied upon by the respondent as being contrary to those authorities it can be regarded as having been decided per incuriam.

32. My answer to the qustion posed in this appeal is "YES".