HKSAR v. YUNG KING CHIU

HCMA90/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 90 OF 1999

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J U D G M E N T

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1. The appellant was convicted on 24th November 1998 of one charge of attempting to take a conveyance without authority. He was convicted and sentenced to a term of imprisonment which was suspended.

2. The evidence against him was that on 22nd March 1998, at Sheung Shui, he was said by a police officer to have been in the driver seat of a medium goods vehicle bearing Registration No. GH3056. The officer said he saw the appellant sitting in the driver seat with both hands on the steering wheel and the engine of the vehicle was running. He went up to the driver's door and told the appellant to leave the vehicle. The appellant did not move. The officer then opened the door and revealed his police identity. He saw one key in the ignition. The officer turned the ignition off but the engine did not stop. The engine was later stopped by PW1 who was called to the scene. A conversation took place between the police officer and the appellant.

3. There were two other police officers on observation duty, their evidence was also heard by the Magistrate. He very properly discounted that evidence due to inconsistencies, and when he arrived at his Statement of Findings, he said he had reservations about it and rejected their evidence in areas which were contradicted by the Defence case. He believed the evidence of the officer who had approached the vehicle.

4. I will not deal with the first ground of appeal which relates to whether or not the post recorded caution statement by the police should have included conversation with the appellant prior to arrest and caution. There is nothing in that ground.

5. The second ground of appeal is that matters placed before the learned Magistrate in favour of the appellant were not accepted. The ground claims although the Magistrate was alive to certain facts, he :

".... still found the Appellant did not tell the truth and his evidence was unreasonable and unacceptable. The learned Magistrate however did not spell out which part of the Appellant's evidence was unreasonable and why was it unacceptable. To the contrary, if the learned Magistrate had indeed considered the aforesaid adequately, he would have realized the inherent improbabilities of the Appellant attempting to drive away the tractor."

6. In an appeal against a magistrate's findings, it is of course not a re-hearing. It is for the appeal court to consider the manner in which the magistrate has approached his findings in respect of the evidence and the law, and determine whether that approach has been correct as to the facts - not necessarily as to the facts themselves but as to the manner in which he approached the facts - and that he has applied the law as he ought. From para.15 of the Statement of Findings, it is quite clear, as the Magistrate sets them out, that he did take into account all those matters raised by Mr Wong in his ground of appeal on behalf of the appellant. He went on to say this :

" I found that the Defendant did not tell me the truth. I found his evidence was unreasonable and unacceptable. He was evasive. I did not believe his evidence. I reject his evidence. I also reject his explanation offered in his cautioned statement."

It is clear, therefore, that the Magistrate considered all those matters raised by Mr Wong, and in his assessment of the appellant, based in part clearly upon evasiveness which is a proper ground for assessing credibility, came to the conclusion that the evidence of the appellant was not to be believed.

7. I cannot say that the Magistrate has erred in his consideration of the evidence. I cannot say that his approach has been in any way incorrect, and I am satisfied that he has reached a conclusion that he was entitled to reach on the face of the evidence.

8. The appeal against conviction is dismissed.