HKSAR v. CHU CHI KONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1167 OF 1997

(On appeal from STC 428 of 1997)

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J U D G M E N T

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1. The Appellant was tried before Ms L.K. Loh in the Magistrate's Court at Shatin on one charge of causing death by reckless driving; one charge of carrying excess passengers; and one charge of doing an act tending and intended to pervert the course of public justice. The trial lasted a number of days; and on 10th November the Appellant was convicted of causing death by reckless driving and of doing an act tending and intended to pervert the course of public justice.

2. He was acquitted of carrying excess passengers charge. On the 25th November 1997 he was sentenced to two months' imprisonment and disqualified from driving all classes of vehicle for 24 months in respect of the causing death by reckless driving charge and to 12 months' imprisonment in respect of the perversion of justice charge. The sentences were ordered to run consecutively. He was also ordered to pay costs in the sum of $5,000.00.

3. He now appeals against his convictions. Originally, he also appealed against his sentence in respect of the perversion of justice charge; but he now tells me that he had abandoned his appeal against sentence on the 23rd April 1998. He confirms before me today that he does not wish to pursue his appeal against sentence.

4. His grounds of appeal against conviction are set out in his Notice of Appeal against conviction. They read:

"(1) The conviction upon the offence of reckless driving causing death was against the weight of evidence.

(2) The conviction upon the offence of doing an act with intent to pervert the course of justice was unsupported by the evidence. There was no sufficient evidence to support a finding that he possessed an intention to pervert.

(3) There was a material irregularity in the trial in that the magistrate refused applications that she should excuse herself or alternatively to grant a separate trial in circumstances where such applications should have been allowed."

5. The magistrate has prepared a very detailed Statement of Findings; and I am satisfied that there was ample evidence for the magistrate to convict. There is, therefore, nothing in the first two grounds of appeal.

6. I turn to the 3rd ground. This is what the magistrate said on the question of her recusing herself.

"The defence application for me to excuse myself from hearing the case against the Appellant was on the grounds that having heard the Appellant's co-accused's plea and her admission of brief facts, these matters are highly prejudicial against the Appellant. I considered the application carefully. However, a plea of guilty by another is not evidence against an Appellant who pleads not guilty. I indicated that I would warn myself, and I did, that nothing admitted by the co-accused is evidence against the Appellant, and that no weight would be given to any matters admitted by the co-accused and that no prejudice would arise against him. Thus, I refused the defence application."

7. In my judgment, the magistrate was right not to recuse herself and had adopted the correct approach in relation to the matters which were troubling the defence. As to a separate trial, the magistrate said this:

"Before the close of the defence case, Mr Chandler applied for the trial of the perversion charge to be severed from the reckless driving and carrying excess passenger charges on two grounds, namely

1. That the documents regarding the co-accused have not been taken off the court file.

2. That I asked many questions of Dr Yu and also a few of the character witness Detective Senior Inspector Lee Wai man, these amounting to more than those asked by the prosecution.

Applications and the grounds thereof relating to the admission by the co-accused have already been ventilated earlier in this trial. To sever on the grounds that the documents regarding the co-accused are still on the court file would be pointless, because although I already know the brief facts admitted by the co-accused and have heard her counsel in mitigation, and as I have indicated before, I will warm myself, and I did, constantly, throughout that no weight can be attached to any matter admitted by the co-accused."

8. The magistrate then turned to the complaint that she had asked too many questions; and she made it clear that her questions were for the purpose of clarification. There is nothing in the 3rd ground of appeal either.

9. In his oral submissions to me he also complained that the magistrate was not able to give her reasons when convicting him on 10th November 1997 but was only able to do so on 25th November 1997. Here the facts were these. When the magistrate said, after an adjournment to the 10th, that she found the Appellant guilty, Mr Chandler who was defending said that he was unable to mitigate without the magistrate's reasons for convicting. I need not say anything as to whether there was any justification for Mr Chandler's stance. The magistrate chose to accommodate him. She gave her reasons on the 25th; and Mr Chandler then mitigated. There is no substance in this complaint.

10. Accordingly, the appeal is dismissed.