HKSAR v. Adil Muhammad

HCMA 396/2020

[2021] HKCFI 3125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 396 OF 2020

(ON APPEAL FROM KCS 502746 OF 2020)

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BETWEEN

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J U D G M E N T

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1.The appellant pleaded not guilty to three summonses, namely:

(1)  Dangerous driving, contrary to section 37(1)  of the Road Traffic Ordinance (Cap. 374)  (“the 1^st Summons”);

(2)  Failing to stop after an accident whereby personal injury was caused to another person, contrary to sections 56(1)  and 56(5)  of the Road Traffic Ordinance (Cap. 374)  (“the 2^nd Summons”); and

(3)  Failing to report an accident involving personal injury to another person, contrary to sections 56(3)  and 56(6)  of the Road Traffic Ordinance (Cap. 374)  (“the 3^rd Summons”).

2.The appellant appeared before Deputy Magistrate Chan On-ting (“the magistrate”)  at Kowloon City Magistrates Court on 30 October 2020 and was legally represented.  The magistrate handed down verdict and sentence on the same day.

3.He was acquitted of the 2^nd and 3^rd Summonses.  The appellant was also acquitted of dangerous driving for the 1^st Summons but was convicted on the alternative careless driving.  The appellant was fined $2,800.

4.The appellant now appeals his conviction.

Admitted Facts

5.The appellant was the driver of a motorcycle registration mark WE5262 on Tak Ku Ling Road near Carpenter Road on 12 August 2019 at around 7:10 pm.

6.A sketch of the scene[1], photographs[2] and a medical report of PW1[3] were admitted into evidence.

7.At all material times, the weather was fine and the lighting was sufficient.  The road surface was dry and the traffic was smooth.  There are two lanes on Tak Ku Ling Road.

Prosecution Case

8.The Prosecution called four witnesses in support of their case.  At the material time, PW1, PW2 and 2 acquaintances were crossing the pedestrian crossing at the offence location together with other pedestrians. It was the prosecution case that the appellant whilst riding his motorcycle dashed towards them, causing them to dodge in fear that the appellant would run over them.  The appellant then stopped on the left lane, got off his motorcycle and scolded them in Cantonese with a vulgar hand gesture.  Thereafter, an argument ensued between the appellant and PW1’s party.

9.PW1, PW2 and others surrounded the appellant’s motorcycle.  PW1 asked the appellant not to leave because a report had been made to the police.  PW1 was standing in front of the appellant’s motorcycle and PW2 was standing at the left-hand side of the motorcycle.

10.The appellant suddenly accelerated and drove past the group of the people who surrounded the motorcycle.  The front wheel of the motorcycle rode over the instep of PW1’s left foot.  PW1 shouted in pain, lost balance and fell on the ground causing abrasions on his right knee.

11.PW3, a police officer, was the first officer who arrived at the scene at about 7:30pm.  PW4 was a police officer who attended the scene at about 7:45pm.

Defence Case

12.The appellant elected not to give evidence and did not call any defence witness.

13.It was the defence case that the incident was an act of bullying, revenge, racism and discrimination by a group of jaywalkers against the innocent driver, that is the appellant.

14.The appellant’s motorcycle had not come into contact with PW1 or anyone else.  The allegations made against the appellant were false and fabricated.

15.It was the appellant’s case that he was falsely imprisoned by PW1, PW2 and the others by surrounding him on his motorcycle in an aggressive manner and swearing at him.  There were racist connotations.  He was South East-Asian and they were Chinese.  The appellant felt scared and out-numbered and in that situation the appellant justifiably left the scene by carefully reversing and manoeuvring through the gap between PW1 and PW2.

Statement of Findings

16.The magistrate considered the two main issues in the case were as follows:-[4]

(1)  whether the way the defendant drove fell far below what would be expected of a competent and careful driver, and whether it would be obvious to a competent and careful driver that driving in that way would be dangerous; and

(2)  whether there had been an accident whereby personal injury was caused to another person.

17.In dealing with the second issue first the magistrate found there was an irreconcilable discrepancy between PW1 and PW2’s evidence regarding the direction from which the appellant drove away.  She went on to find that the injuries sustained by PW1 might not have been caused by defendant’s driving.  Therefore, she found that there was a doubt as to whether there had been an accident whereby personal injury was caused to another person.  She acquitted the appellant of the 2^nd and 3^rd summonses.

Grounds of Appeal

18.In the Perfected Grounds of Appeal[5], Counsel for the appellant, Mr Andrew CHY Leung, advances five grounds, namely that the magistrate:

(1)  wrongfully found that the appellant attempted to drive through a pedestrian crossing where pedestrians were present (“Ground 1”);

(2)  erred in not adequately considering whether the appellant was falsely imprisoned by PW1 and PW2; (“Ground 2”);

(3)  erred in not finding no evidence that the appellant acted in self-defence and/or duress of circumstances (“Ground 3”);

(4)  wrongfully found the appellant suddenly drove through the gap between the pedestrians at high speed (“Ground 4”); and

(5)  lurking doubt (“Ground 5”).

Discussion

19.A magistracy appeal is an appeal by way of rehearing.  The legal principles governing a magistracy appeal are stated in HKSAR v Ip Chin-kei & Others [2012] 4 HKLRD 383 at paragraph 65.

20.The issue in this appeal simply boils down to whether the magistrate had erred in convicting the appellant of careless driving when she found that the appellant drove through the gap between pedestrians at high speed when he left the scene.

21.I turn first to deal with ground 4.

Ground 4 Whether magistrate wrongly found the appellant suddenly drove through the gap between the pedestrians at high speed.

22.The magistrate found that the appellant drove away through the gap between the people standing in front of (my own emphasis)  and near the appellant at high speed[6]. She came to her finding on this basis as stated in paragraphs 34-37 of the Statement of Findings:-

“The driving manner of the Defendant

34. The prosecution case for dangerous driving was premised on the defendant’s driving when he drove away through the people in front of him and rode over PW1’s left foot. The credibility and reliability of the witnesses at scene, namely PW1 and PW2, is therefore fundamental and I have approached their evidence with caution.

Discrepancies between PW1 and PW2’s evidence

35. The fact that PW1 and PW2 gave different account on the direction from which the defendant drove past PW1 did not cause me to doubt their clear and unequivocal evidence that the defendant suddenly drove through the gap between the people in his close proximity at a high speed. PW1 and PW2 both firmly denied the suggestion that the defendant had carefully manoeuvred through the gap between those in front of him.

36. I have carefully considered all their evidence and observed their demeanour in their giving of evidence. Their evidence have not been identical and had differed in certain aspects, for example the exact position of those people who surrounded the Defendant, and whether the defendant had ever got off his motorcycle or removed his helmet etc.. I find that such discrepancies are minor and, given the circumstances on that night, understandable to a certain extent. I also find that PW1 and PW2 had been firm and unyielding and emerged unscathed from cross-examination.

37. Having considered their overall evidence, I find that such discrepancies did not cause doubt on their overall credibility and reliability as witnesses. I find as a fact that the defendant suddenly drove away through the gap between the people standing in front of and near him at high speed.” (my own emphasis)

23.I have had the opportunity of reviewing the whole of the evidence at the trial as I have been provided with a full transcript.  In support of the above ground Mr Leung Counsel for the appellant referred to different parts of the transcript pertaining to the evidence of PW1 and PW2 as to how they and the other pedestrians had surrounded the appellant and prevented him from leaving.

24.On the evidence before the magistrate she was, with respect, unable to conclude there was a gap between the people standing in front of the appellant.

25.The magistrate had already found discrepancies in the route the appellant took in driving away from the pedestrians.  She specifically referred to the discrepancies in PW1 and PW2’s evidence as to the direction from which the appellant drove away.  She said [7] :-

“30. I find that there is an irreconcilable discrepancy between PW1 and PW2’s evidence regarding the direction from which the defendant drove away. It is PW1’s evidence that the defendant drove past his left side and rode over his left foot, while PW2 gave evidence to the effect that the defendant drove past the right side of PW1.

32.  Should PW2’s account be true, it would be inherently improbable that the defendant’s motorcycle could run over the instep of PW1’s left foot and caused injury.  It follows that the injuries sustained by PW1 might not have been caused by defendant’s driving.  Therefore, I must find that there is a doubt as to whether there had been an accident whereby personal injury was caused to another person.”

26.As can be seen from the transcript and referred to by Mr Leung counsel for the appellant, PW1 and PW2’s evidence was that they and or the pedestrians were in front of the motorcycle.  There was no evidence of a gap between them.

27.PW1 evidence was that he had propped himself up against the front of the motorcycle.  In examination in chief PW1 was questioned and answered as follows[8]:-

“Q. Sorry. So, where did you stand and where did Ah Choi stand when you tried to stop the motorcycle moving? Do you remember?

A. I was at the front of the motorcycle and Ah Choi was on my left.

Q. You were at the front and Ah Choi is on your left-hand side?

A. Mm. Mm.

PUNTI INTERPRETER: ‘Right.’

Q. Okay, then what happened?

A. Then I asked him not to leave.

Q. Then what happened?

A. I asked him not to leave; someone had already made a report to the police.

Q. Wait a minute. Okay. 跟住呢？ -- and then?

A. Then he said he would not leave.

Q. After he said that, anything –- and then what?

A. He reversed his vehicle and I did not allow him to leave.

Q. What did you do stopping him to leave?

A. Well, used the body to prop it against the vehicle.

Q. You were at the front of the motorcycle or at the back? Because you said he was reversing the motorcycle.

A. At the front of the vehicle and used the body to prop it against the front in an attempt to stop it from leaving.

Q. I know, but he was reversing his motorcycle at that time. How did you stop him?

A. Just prop myself against it.

Q. And then what happened?

A. Then, all of a sudden, he accelerated.

Q. And then what happened?

A. Brother Choi avoided it but I failed to do so and my foot got run over by him.

Q. Okay. Which part of your foot was run over by his motorcycle?

A. The left side, the instep.

Q. So, after your left foot was run over by the motorcycle, what happened?

A.  I lost my balance and my right knee bumped against the ground and the whole body lieded ...”

28.PW2’s evidence was that two people pressed onto the front of the motorcycle.  In examination in chief he said[9]:-

“Q. You said earlier on that he intended to leave; would you elaborate how he intended to leave?

A. He moved his vehicle. He moved his vehicle.

Q. He move forward his vehicle, his motorcycle, or he reverse his motorcycle?

A. Moved forward.

Q. Was there anyone before his motorcycle at that time?

A.  Well, the people were already surrounding his motorcycle when he moved his motorcycle. Two of them already pressed onto the front of his vehicle.”

29.Significantly, the magistrate had rejected the route the appellant drove away because of the discrepancies in PW1 and PW’s evidence.  The discrepancies was that the appellant had driven off to the left or right side of PW1 which she had rejected.  There was no evidence therefore of the route the appellant had taken.

30.The only evidence left before the magistrate was as to the positions the pedestrians were standing in relation to the appellant’s motorcycle.  According to PW1 and PW2 there was no gap between the pedestrians as they were standing at the front of propped up against or pressing on the appellant’s motorcycle.  A gap between the pedestrians was put as part of the defence case in cross-examination but this was denied by PW1and PW2.  The exchange was as follows with PW1[10]:-

“Q. I put it to you that the gap that the defendant drove through between you and PW2, at the time, the defendant drove past the right side of you.

A.  I repeat what I said just now, at that time, PW2 was on the roadside and I, together with Brother Choi, was stopping the motorcycle from leaving at the front.”

And with PW2[11] it was as follows:-

“Q. And I put it to you that, when the lights were on green, the defendant carefully manoeuvred the bike -- motorbike between the gap which was between you and PW1.

A. If a group of people are surrounding you and the green light is on and you are able to go through the crowd in between the gap, will this be a correct way to drive?

COURT: Can you, please, just answer the question directly? Don’t say ‘Ifs’. No one asked you about ‘What ifs’.

A. Please, repeat the question.

Q. Okay. I put it to you that, when the traffic lights were on green, the defendant carefully manoeuvred the motorcycle in between the gap that was between you and PW1.

A. Do not agree.

Q. I put it to you that the defendant carefully manoeuvred his handlebars and mirrors between the gap that was between you and PW1.

A.  Do not agree.”

31.As can be seen from the above exchange there was no evidence to which the magistrate could have found there was a gap between the pedestrians. I find that the magistrate plainly erred in finding that the appellant drove through the gap between the people standing in front of the appellant’s motorcycle. 

32.The fourth ground alone disposes of the appeal and therefore it is unnecessary for me to deal with the remaining grounds of appeal.

Conclusion

33.Having reviewed all the evidence with care, I am not satisfied that the case against the appellant was properly established.  Accordingly, the appeal against conviction is allowed.  The conviction is quashed and the sentence is set aside.

Costs

34.As to costs, I make an order nisi that the respondent pay the costs of the appellant in this appeal, such costs to be taxed if not agreed.  Should any party seek a different order as to costs, written submissions should be lodged and served on the other party within 14 days of the handing down of this judgment, with liberty on the other party to lodge and serve written submissions in reply within 14 days thereafter.  If no written submissions are received seeking a different order as to costs before the expiry of the relevant period, the order nisi will become absolute.

Ms Rosa Lo, SPP of the Department of Justice, for the respondent

Mr Andrew C.H.Y. Leung instructed by Chaudhry Solicitors, for the appellant