HKSAR v. CHONG CHUNG HING

HCMA 879/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 879 OF 2001

(ON APPEAL FROM ESV 26/2001)

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J U D G M E N T

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1. The Appellant was charged with 1 charge of being the driver of a private car displaying registration mark CF810 on a road did, without reasonable excuse, failed to comply with the requirement indicated by a no stopping zone 7-10 am and 7-4 pm traffic sign, of the type shown in figure no. 141 of the Road Traffic (Traffic Control) Regulations, Cap. 374. And to that offence he had pleaded not guilty and after a trial, the learned magistrate convicted him of the offence. It is against his conviction that the Appellant appeals to this court.

2. At the trial, the prosecution called one witness who is PC49797 and he gave evidence that at about 4:43 pm he had seen two cars, the Appellant's car CF810 and another car FY221, parked at Wing Lok Street. At that time FY221was behind CF810 and both cars were parked in the no stopping zone. There is no dispute that the Appellant was the driver of CF810. The police officer gave evidence that after observing the Appellant's car for 2-3 minutes, he then went up to the Appellant's car and informed him that he was going to charge him with the fixed penalty offence and also the police officer said that during his observation of 2-3 minutes, the Appellant's car did not move nor did he switch on his indicator lights and there were no cars parked in front of CF810.

3. During the evidence of PW1, he also produced a sketch which was exhibited as P1. This sketch shows very clearly that he drew the vehicle FY221 as the car which was in front of CF810. This was in contradiction to the evidence this officer gave in court. It is clear that although the Appellant did not choose to give evidence, he did suggest to the police officer that his car at the time was behind FY221, but that was denied by the prosecution witness.

4. In the learned magistrate's oral verdict and also in his statement of findings, the learned magistrate did print out the fact that the Appellant's submission was that the prosecution had failed to prove that his car was in front of FY221 because of the contradiction between the sketch and the oral evidence. The learned magistrate must have taken that into account when he ultimately came to his finding of facts. But unfortunately the learned magistrate did not sufficiently in his statement of findings explain why he preferred the oral evidence of PW1, the police officer as opposed what appears in his sketch, He failed to resolve that conflict but he concentrated his mind on the fact that the prosecution witness had observed the Appellant's car and that there was no indication whatsoever that he was leaving and had just stopped there.

5. Another matter that concerns this court is that the Appellant was unrepresented at the trial, and it was only after his conviction that the learned magistrate learned of the clear record of the Appellant. It is therefore incumbent upon the learned magistrate when he learned of the clear record of the Appellant to review himself upon being told of the clear record to see if he should on the facts review his decision to convict. The learned magistrate failed to do that. But, curiously, in his statement of findings, at paragraph 7 he said he bore in mind the fact that the Appellant is a solicitor and that he had no previous convictions for road traffic offences. But that is not enough. It is not enough that after conviction and sentence for the learned magistrate to write in his statement of findings that he had kept the Appellant's clear record in mind. Justice has to be seen to be done and this is why it is incumbent upon him upon realising this fact that he should have at that time before he sentenced the Appellant reviewed himself having been told about his clear record, the fact that he had failed to do so cannot be cured by subsequently adding it into his statement of findings.

6. This was a simple case and the facts were very simple and, perhaps that is the problem; because it is often in simple cases that errors are easily made. I am therefore left with no alternative but to allow the appeal on the basis:

(1) that the learned magistrate had failed to resolve this significant conflict in the evidence of PW1 in relation to whether the Appellant's car was parked behind or in front of the other car. Because although the Appellant did not choose to give evidence this was a factor which was put to the officer to raise an explanation or reasonable excuse that the Appellant could not move his car out, because the car in front did not leave him enough space. It also raises doubt on the credibility of PW1 in relation to his evidence that he observed the Appellant for 2-3 minutes. This could have been easily resolved but because it was not considered properly; and

2) also the fact of the Appellant's clear record when made known to the magistrate he had failed to review himself was not interviewed during the trial nor it seems the occupation of the Appellant nor did the learned magistrate mention this in his oral verdict.

7. I therefore feel that there is a lurking doubt as to the propriety of the conviction and I allow the appeal and the conviction is set aside.