The Queen v. Chan Fo-tim

CACC001543/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1543 OF 1983

________________

BETWEEN:-

____________

Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 28th December 1983

Date of deliver of judgment: 28th December 1983

Mr. Winston Leung (Legal Department) for Respondent.

Mr, R. Liu (Liu, Chan Cam) for Appellant.

__________

JUDGMENT

__________

1. The appellant was convicted of charge of dangerous driving at the North Kowloon Magistracy Court on the 13th April 1983. He was fined $500.00 and ordered to pay $200.00 costs. The appellant anneals against his conviction.

2. In his statement of findings the learned Magistrate found that on the 13th March 1983 at night time PW1 was driving his car along Hiram's Highway when he was overtaken by a car driver by the appellant. He considered that the appellant had overtaken PW1's car at a Place and at a time when it was unsafe to do so and that such driving was dangerous.

3. The first ground of anneal that was argued was that the learned Magistrate erred in holding the view that the grudge between the appellant and PW1 was irrelevant. This matter was canvassed at length by the appellant's solicitor at the trial. However the learned Magistrate held that if there had been a grudge he did not consider that it would have led PW1 to give false evidence. In any event he did not believe PW1 held a grudge. I consider that this matter was irrelevant so that the first round of anneal fails.

4. The second ground was based upon the fact that the learned Magistrate rephrased certain questions put by defence counsel in cross-examination. He did so because although PW1 Pave evidence in English he is a German national and was placing a rigid and literal construction upon the questions. The learned Magistrate is apparently familiar with the German language and therefore observed this fact. I see no reason why he should not have done so to make the questions clear. This ground of appeal also fails.

5. Mr. Lau who appeared for the appellant submitted in the third around of anneal that the learned Magistrate erred in not riving any or any due weight to the change of version by PW1 as to the place where the overtaking occurred. In cross-examination PW1 said that he could not swear that the overtaking spot marled on the plan was correct, but that it was very close to the black balloon that he had placed there. The learned Magistrate took this answer into account when he made his decision.  In my opinion the learned Magistrate did not err.

6. Upon the evidence I am satisfied that the learned Magistrate was justified in the findings that he made. The appeal against conviction is therefore dismissed.

Representation:

Mr. Winston Leung (Legal Department) for Respondent.

Mr, R. Liu (Liu, Chan Cam) for Appellant.