THE QUEEN v. LAM SIU-YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1522 of 1988

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted before a magistrate of causing bodily harm by wanton driving contrary to section 33 of the Offences Against the person Ordinance, Cap. 212. He was sentenced to 4 months imprisonment, suspended for 18 months and ordered to be disqualified from driving a taxi for a period of 6 months. He appeals against conviction only.

2. The prosecution case was that a woman passenger boarded a taxi driven by the appellant in Kowloon City in the early hours of the morning to be taken to the Police Club in Mongkok. During the journey, ill feeling developed between the two as the passenger did not approve the route that the appellant was taking. When the passenger alighted from the taxi, she said that she would make a report and then walked to the rear of the taxi intending to take down the registration number of the vehicle. As she was about to do so, the appellant drove his taxi backwards in the direction of the passenger, causing her to fall on the boot of the taxi. He then made a U turn and having done so, he drove on for a short distance with the passenger lying on top of the boot. She was clinging to the radio aerial and shouting for help. The appellant did not stop until he saw two uniformed police constables pass by. The passenger sustained minor injuries and there was medical evidence to this effect.

3. The appellant gave evidence. He denied that there was any dispute about the route but the passenger had asked him if the taximeter was fast. After the passenger had alighted, he turned his taxi around to the opposite direction in order to travel towards Boundary Street. While he was doing the U turn his speed did not exceed 5 kilometres per hour. He agreed that the passenger went to the rear of the taxi but had no idea what she was doing. Having travelled for a short distance after the U turn he heard shouting for help. He immediately stopped and got off from his taxi. He saw the passenger standing behind his taxi beating the boot with both her hands and at the same time shouting for help. Her feet were on the ground. He scolded the passenger and told her that she was crazy.

4. The magistrate accepted the evidence of the prosecution witnesses and rejected the evidence of the appellant. He found him guilty.

5. There was an application for review before the magistrate. This arose out of certain questions put by the prosecutor to the appellant in cross-examination to the effect that the taximeter of the taxi had not been examined after the incident but subsequent enquiries confirmed that is was in fact examined. The magistrate accepted that this was a mistake on the part of the woman prosecutor who put the questions on the basis of her personal belief without instruction but he concluded that this mistake did not in any way affect the prosecution case or the credibility of the woman passenger.

6. There were two main grounds of appeal. The first one was that chore were material irregularities in the course of the trial because the court prosecutor failed to disclose to counsel for the appellant a piece of material fact namely PW1 had made a complaint to the police that the taxi fare she paid to the appellant was higher than she normally paid.

7. With respect to Mr. Hung who appeared for the appellant in this appeal, I was totally unable to follow or even understand his argument. A copy of the statement of the woman passenger to the police was supplied to the defence for the purpose of cross-examination at the trial. There was absolutely nothing in that statement that she had made such a complaint. Mr. Bruce who appeared for the Crown also assured no that there was no other statement from the woman passenger in his possession or in the possession of the police. Mr. Hung insisted that since the taximeter had been examined, the passenger must have made a complaint to the police that she was overcharged by the appellant. He argued that because of the refusal by the prosecution to produce this piece of evidence, the prosecution was hiding something and the passenger could have lied in her evidence. I see no merit whatsoever in this argument, which was not even an argument. It was purely fanciful speculation!

8. The second and last ground of appeal is that the conviction is unsafe and unsatisfactory. The magistrate heard and saw the witnesses and observed their demeanour and he gave a careful and detailed analysis and evaluation of their evidence. He was perfectly entitled to the conclusion that he had reached. In my judgment, there is ample evidence to support the conviction which is in no way unsafe or unsatisfactory.

9. The appeal is dismissed.