HKSAR v. Li Dandan

HCMA 373/2018

[2019] HKCFI 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 373 OF 2018

(ON APPEAL FROM KCS NO 42265 OF 2017)

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J U D G M E N T

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Introduction

1.What begins as a minor traffic incident (allegedly a slight collision) quickly spills over into a major one (an allegation of dangerous driving).

2.As the facts in issue at trial turn wholly on the question of what really happened in the later incident; arguments as to who’s right or who’s wrong in the initial incident or whether there ever occurs a collision in the first place between the two vehicles are extraneous therefore.

3.The incident occurred on Man Wai Street, Yau Ma Tei, during lunch hours on 16 June 2017. The street in question is a one-way lane with cars parked on both sides most of the time allowing only a narrow passage for traffic to go through.

4.What happened was: while Mr Yeung, a lorry driver, was driving his lorry along Man Wai Street, he had once stopped to wait for the appellant to park her car on the right side of the road; after she was done (or at least from the lorry driver’s perspective), Mr Yeung then continued on but as the lorry passed the appellant’s car, he said he felt a collision between the two vehicles. Then followed by the lorry driver’s remonstration with the appellant about the collision which had elicited repeated denials from her and ended up with the lorry driver calling the police. Undoubtedly, such a scene was likely to attract a crowd of the curious sort and Mr Ng was one of the on‑lookers.

5.What happened next is the divergence between the two parties. Not wanting the defendant to leave the scene, Mr Yeung stood in front of her car, and the appellant’s car suddenly moved forward without any warning, so he said, causing him to fall onto the bonnet of her car, he quickly regained balance and stepped back; not long after that, she did it again, this time Mr Yeung had to balance himself with his hands on the bonnet; there came a third time, Mr Yeung was able to avoid contact with the car by stepping back on this occasion.

6.The appellant’s account of events is different: as Mr Yeung angrily accused her of hitting his lorry to which she took exception, she was frightened and wanted to leave the scene. As soon as she moved the car forward, she had to brake hard as Mr Yeung made a lunge at the car. With his hands on the bonnet of her car stopping her from leaving, Mr Yeung said, “Want to leave just like this after hitting my vehicle and also hitting me while driving such a nice car?” She thought Mr Yeung was trying to blackmail her; she got scared and locked all the car doors and waited for the police in the car. 

7.Eventually the police had become involved resulting in the appellant receiving a summons of dangerous driving[1].

8.The case was heard before Magistrate Ho Chun Yiu sitting in the Kowloon Magistracy and the appellant was convicted after trial of one count of dangerous driving and fined $5,000 plus a 6-month ban on driving and she was also ordered to attend a Driving Improvement Course at her own costs. She now appeals against conviction only.

9.The trial was conducted in Chinese in the court below and the appellant was legally represented; on appeal, Mr Clive Grossman SC leading counsel Mr Osmond Lam, Mr Warren Louis Tang and Mr Fung Pak Kay for the appellant, while Mr Eddie Sean (SADPP) and Mr Pierre Lui (SPP) for the respondent.

Facts in issue at trial

10.As mentioned above, the issue turns on what really happened at the later stage of the event on Man Wai Street? There are three main players in the trial below – the lorry driver (Mr Yeung), an on‑looker (Mr Ng) for the prosecution, and the appellant. Having heard all the evidence, the learned magistrate rejected the testimony of the lorry driver as well as the appellant, but accepted the evidence of Mr Ng, whom he considered an independent witness, and convicted the appellant accordingly. 

11.It is therefore necessary to mention what Mr Ng had testified at trial:

“At the time when the appellant was about to drive away, the lorry driver was standing half a foot in front of her stopping her from leaving the scene. From where he stood, Mr Ng could see the front of the appellant’s car (But no evidence as to the distance from which the incident was observed by Mr Ng).

She moved her car forward in a very slow manner covering about an inch in distance, then stopped, the lorry driver immediately stepped back; such scenario happened three times in quick succession. Each time the car moved forward an inch in a slow manner, stopped, then the lorry driver stepped back. ”

12.In his version to the court, Mr Ng made it clear that he had not seen whether the two had come into contact (meaning the car and the lorry driver).

13.In his statement to the police made shortly after the incident, Mr Ng said that every time when the appellant’s car moved forward, it had come into contact with the lorry driver (meaning the car hit the lorry driver however slight the touching might be); but about a year later when testifying in court, he recanted, saying he had never seen body contacts between the car and the lorry driver. He explained that because of the angle of his observation, he could not see that, but only that the appellant set the car in motion and the lorry driver stepped back.

14.It was this discrepancy in evidence which forms the subject matter of the main complaint in Ground 1 of appeal, and only this ground alone, in my view, warrants attention.   

Grounds of the appeal

15.The grounds of the appeal were that the learned magistrate erred in accepting the evidence of Mr Ng whose evidence was clearly unreliable in that it was materially contradictory to his witness statement (Ground 1), and that the material discrepancies between the main prosecution witnesses, Mr Yeung and Mr Ng, were of such a deficient quality that it should have created at least a reasonable doubt (Ground 2), and that the learned magistrate had so descended into the arena that an informed bystander would say that the appellant did not have a fair trial (Ground 3).

Ground 1

16.Let’s see how the learned magistrate dealt with it, in paragraph 30 of his statement of findings, he said this:

“In this regard, I took into consideration that in fact Mr Ng〔PW2〕had already made it clear when asked about this that from where he was and the angle of observation, he could in fact only see that the defendant set the car in motion and Mr Yeung〔PW1〕then stepped backward, and that was the only reason why he formed the opinion that the two had come into contact; in fact, at that time, he was not certain about this. It was also because of the above that he frankly pointed out in court that he actually had not seen the relevant situation. I was of the opinion that if Mr Ng had wanted to frame up the defendant, he could simply have stuck to his original version that the private car had in fact touched Mr Yeung. It could actually be seen from his frank admission about this matter in court that he was not making things up casually. Not only was he not incredible as alleged by the defence but instead his credibility was highlighted all the more.”

17.In response, Mr Sean for the respondent said the following:

“The present complain was specifically addressed by the learned magistrate. As indicated by the magistrate, if PW2 wanted to frame up the appellant, he could have maintained his earlier version. In fact, there was no independent evidence which could have challenged PW2’s versions. Nevertheless, PW2 frankly clarified the position based on his location and angle of observation at the material time. Indeed, this particular challenge from the defence at trial somehow inadvertently strengthened PW2’s credibility and reliability.”

Discussion 

18.Hearing appeals from the Magistrates’ court, I bear in mind that it is conducted by way of rehearing on the evidence before the trial court (with or without fresh evidence adduced), that the trial judge has a great advantage over an appellate court as evidence of a witness seen and heard has a very great advantage over a transcript of that evidence, that the appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong.

19.Mr Sean for the respondent very helpfully reminds me of what Stock J (as he then was) said in R v Kwong Wing On HCMA 574/1996:

“A magistrate is not in his statement of findings expected to deal with every discrepancy, omission, contradiction or improbability which might be uncovered by a microscopic dissection of a transcript. Discrepancies and omissions will occur even with truthful witnesses. A realistic attitude is necessary, and the approach should be to ask whether there have been material and significant discrepancies, improbabilities or omissions such as would lead or should lead a tribunal to doubt credibility on central facts.”

The difference between Mr Ng’s two versions (police and testimonial)

20.I will first of all recap the salient facts of the testimonial version as follows:

“From the location where Mr Ng observed the incident (unclear how far he was from it), he saw the front of the appellant’s car. While the lorry driver stood half a foot away from the car, the appellant, both literally and figuratively, inched her car three times towards the lorry driver, who would step back each time the car moved towards him. It was a slight move; each move covered an inch and thus the car moved 3 inches in total for the whole scenario.”

21.As the evidence shows, the only difference between the two versions concerns whether “the car had come into contact with the lorry driver”. In his statement to the police, Mr Ng was specifically asked about it and he said there was for each time; in court, however, he said there was none.

22.If the point of physical contacts were fleshed out in the police version, it would become something like this:

“The appellant started to move the car forward by one inch, it hit the lorry driver who must have stood extremely close to it (in any event less than an inch), otherwise there would not be any contact, then the lorry driver stepped back.

Thereafter the action repeated twice in exactly the same manner. That would mean in order for touching to occur, every time the lorry driver stepped back, he must not have stepped back more than an inch.”

23.Did it really happen like this - the lorry driver was hit by the car three times by not stepping back further enough from the car – remember here we are talking about only an inch? This story struck me as highly improbable if not impossible.

24.In response to the challenge from the defence concerning the discrepancy of Mr Ng’s evidence, the learned magistrate commented that if Mr Ng had wanted to make things up, he could have stuck to his police version. Obviously, the learned magistrate had not considered the unlikelihood of the police version in its proper context when he said this.

25.Clearly, the testimonial version is a water-down version of what he had told the police. Sometimes when certain matter has been exaggerated, it can be reduced to its proper dimensions to reveal its true colours, but the instant case is far from being such a case.

26.It is clear from the evidence the reason for his recantation is because from where he was, he could not have possibly seen the actual distance between the car and the lorry driver, so he could not tell whether there were contacts between the two. But we know he said he saw the front of the appellant’s car, so if one were to draw a line connecting the three of them, it would be pretty close to a straight line with the lorry driver in between them. 

27.It is very much like looking at a rod from its ends rather than its sides, it would give the observer a very distorted view of its length – much shorter than it really is – we know this from our daily experience.

28.This is the one aspect of Mr Ng’s observation, the distance between the car and the lorry driver, where he could only have a distorted view because of the angle of his observation, and therefore he was not in a position to give a reliable estimate.

29.Notwithstanding this, he nevertheless gave his answers as facts – first, he told the police there were contacts; later in court, he described there was a half-a-foot gap between the car and the lorry driver – neither version could hold water under scrutiny. This is where his unreliability lies - his readiness to testify to something as facts when he in fact could not be sure about.

30.In convicting the appellant, the learned magistrate has this to say (see paragraph 43 of the Statement of Findings):

“I was of the opinion that before setting the car in motion, the defendant must have seen that Mr Yeung was already standing in front of the private car, and must have known that the two were extremely close. Under such circumstances, the defendant still chose to set the car in motion. Whether there was any collision eventually, this act would undoubtedly constitute danger to Mr Yeung. Such a driving manner undoubtedly fell far below what would be expected of a competent and prudent driver, and it must be obvious to a competent and prudent driver that it would be dangerous for the defendant to drive in that way.”

31.Mr Ng’s evidence (half a foot between them) was clearly acted upon by the learned magistrate to come to the conclusion that “the two were extremely close”, but the accuracy of this piece of evidence was doubtful to say the least.   

32.His answers cannot simply be brushed aside as being pertinent to trivial matters. Quite the contrary, they related to the central facts upon which the court would rely to determine the guilt or otherwise of the appellant in the instant case.

33.Given the car moved forward an inch each time in a slow manner (Mr Ng seemed to have no difficulty in observing this from where he was), the question “how far was the lorry driver from the car” would be very crucial in determining whether or not the driving was dangerous.

34.It goes without saying that the further away it is from the car, the less dangerous it gets, and there will come a point when it is no longer considered dangerous, or even careless.

35.For the reasons given above, the information provided by Mr Ng as to the distance between the car and the lorry driver, i.e. half a foot, should have been regarded as unreliable in the circumstances of the instant case given his inability to observe it accurately.

36.It is unreliable and should not have been relied upon by the tribunal of fact; consequently, the conviction is unsafe and unsatisfactory.

Conclusion

37.The appeal is upheld. Conviction and sentence are set aside.

38.I shall hear parties on the question of costs in due course. Written submissions are to be submitted by the parties within 14 days from the date of this judgment.

Mr Eddie Sean, SADPP and Mr Pierre Lui, SPP of the Department of Justice, for the respondent

Mr Clive Grossman SC, leading Mr Osmond Lam, Mr Warren Louis Tang and Mr Fung Pak Kay, instructed by Augustine C Y Tong & Co, for the appellant