THE QUEEN v. CHIU KWOK LEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 895 of 1989

_____________

BETWEEN

________________

______________

J U D G M E N T

______________

1. The charges on which the appellant was convicted in the magistrate's court arose out of the investigation into a traffic accident which occurred at about 7:20 p.m. on the 21st January 1989.

2. In that accident, a motor car bearing a registration number CY8854 knocked down and injured a pedestrian. Police investigation revealed that the appellant, who was then the proprietor of a hire car business, was the registered owner of CY8854.

3. On the 21st January, that is the day of the accident, the police visited the appellant who made a statement which was before the trial court as Exhibit P1. In it he said that the driver of the vehicle at the time of the accident was a person named Lai Kung Ping to whom he had hired the vehicle. He produced documents from his records purporting to show that Lai had in fact hired the vehicle at the material time.

4. On the 23rd January he was asked to, and did, make another statement. It was before the court as Exhipit P2. In it he again said that the vehicle was being driven at the material tiwe by Lai.

5. On the 18th February he went to a police station with a view to regaining possession of his car which was still being held by the investigating police officers.

6. During the course of that visit, he was interviewed again on the instructions of the inspector in charge of the case. In the course of an interview by a subordinate of the inspector, he admitted that he had previously lied to the police when telling them that Lai had been the driver of the car at the time. That statement, the voluntariness of which was challenged at the trial, was ruled to be voluntary and admitted as P3.

7. The appellant, as a result of that admission, was charged with 3 offences. Two charges alleged the offence of misleading a police officer, contrary to section 64(b) of the Police Force Ordinance, Cap. 232. They related to the statements he made on the 21st & 23rd January 1989 in Exhibits P1 & P2.

8. The third charge alleged failure to stop after an accident contrary to section 56 of the Road Traffic Ordinance, Cap. 374. That charge was laid because the driver of the motor vehicle was alleged to have left the scene after having knocked down the pedestrian.

9. At the trial, Lai Kung Ping was a prosecution witness. He said that he was not the driver of the vehicle on the 21st January and that, at the material time, he was driving another vehicle owned by another company.

10. The inspector in charge of the case was called as a witness after Lai had given evidence. He was cross-examined at some length as to the basis for his belief during the course of his investigation that Lai was not in fact the driver at the material time.

11. In the course of that cross-examination, counsel who then appeared for the appellant - it was not Mis Toh who appears for him today - asked the inspector to produce documents which he obtained in the course of his investigation from the owner of the vehicle which the witness Lai said he was driving at the time of the accident. She cross-examination elicited evidence that the inspector had photocopies of certain documents belonging to that company purporting to show that a journey had been made by a vehicle owned by that company at the material time. It was, however, difficult to determine from the document who the driver of the vehicle was.

12. In any event, as a result of the cross-examination and during it, counsel for the appellant had the document admitted as an Exhibit and it became Exhibit P12 at the trial.

13. It is quite clear that the document could only have been evidence relevant to the basis of the inspector's belief. It was not evidence that the particular vehicle had made the journey or that Lai was the driver of it if it did make such a journey.

14. However, in the course of his Statement of Findings, the learned magistrate said that he was satisfied that the witness Lai had made a journey in that particular vehicle at the material time. He went on to say that Exhibit P12 was evidence that that journey was made and added: "The evidence of Lai Kung Ping satisfied we that he made that journey".

15. If, of course, the magistrate was satisfied that Lai made that journey then of course equally he was satisfied that Lai could not have been driving the vehicle CY8854 when it was involved in the traffic accident on the 21st January. The evidence from Lai was that he had in fact hired a vehicle from the defendant some 12 mohths before the traffic incident. If Lai's evidence was accepted then the magistrate had before him evidence on which he could come to the conclusion that the appellant had given misleading information to the police.

16. What concerns me is this: having relied on Exhibit P12 as evidence that the journey was made, how far did acceptance of that document for that purpose affect the learned magistrate in accepting the assertion of Lai that he was elsewhere at the time of the accident? To what extent did it lead him to conclude that the appellant had given false information to the police?

17. The learned magistrate was, of course, quite entitled to find that Lai had not been driving the vehicle CY8854 at the time of the traffic accident based on the evidence of Lai himself. But he has made a finding that the alibi journey by Lai was in fact made relying on Exhibit P12. He has therefore made an important finding based on evidence which was not admissible for that purpose. I think that his finding on this material issue is unsatisfactory.

18. During the course of argument, I raise with counsel the question of a re-trial if I concluded that the magistrate's reliance on Exhibit P12 rendered the conviction unsafe or unsatisfactory. Both counsel, for different reasons, made submissions opposing such, course being taken.

19. This evidence was put before the court not as a result of any conduct on the part of the prosecution but solely by the defence. The defence, of course, did not ask for the learned magistrate to make the finding that he did make based on that document.

20. The prosecution case, if a certain view is taken of it, is very strong. The offences are serious out it has been submitted that since the appellant has served a good proportion of the term of imprisonment imposed by learned magistrate it is not appropriate to order a retrial.

21. In respect of the misleading information offences, the learned magistrate sentenced the appellant to imprisonment for 3 months on each charge but ordered that the sentences run concurrently.

22. In respect of the third charge, he sentenced him to imprisonment for 3 months and ordered that sentence to be served consecutively. He also ordered that the appellant be disqualified for 18 months.

23. The total sentence of imprisonment imposed was therefore 6 months of which the appellant has already served some 3 months. Allowing for the ordinary remission he has effectively served the major part of the sentence.

24. I have considered that factor but it seems to me that it is a matter which, if he is convicted on retrial, can be properly brought to the attention of the court so that allowance can be made for the period of sentence and disqualification he has already served. I do think that in the circumstances of this case justice requires that there ought to be a retrial.

25. Accordingly, I allow the appeal, quash the convictions, set aside the sentences and the order for disqualification and order that the appellant be retried before another magistrate on the charges in the charge sheet. I allow the appellant cash bail in the sum of $1,000.