HKSAR v. Chan Sing Mo

HCMA000074/1997

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 74 OF 1997

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Coram : The Hon. Madam Justice Beeson in Court

Date of Hearing : 10 February 1998

Date of Delivery of Judgment : 10 February 1998

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J U D G M E N T

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1. The Appellant appeals against his conviction for an offence contrary to Reg 5(4) and 121 (1) Road Traffic (Construction and Maintenance of Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374.

2. This related to a medium goods vehicle which he owned being used on the road when the braking system and the means of operation thereof was not maintained in good and efficient working order.

3. The case was heard in the Magistracy on 9th December 1996. No evidence was called on behalf of Defendant/Appellant who filed a Notice of Appeal on 20th December 1996.

4. The sole ground of appeal was that the conviction resulted from the negligence and/or incompetence of Appellant's legal advisers for failing to:

(1) seek an expert's advice on the cause(s) of the braking defect

(2) arrange an expert to testify on that matter

(3) advise on the need for an expert to counter the prosecution evidence

(4) hear Appellant's suggestion that the regular vehicle technician be called

5. An appeal hearing was fixed for 3rd December 1997. On that day Mr. Justice Wong granted Appellant's application for an order that his erstwhile solicitor and solicitor's clerk attend Court to be cross-examined.

6. On 10th February 1998, the solicitor and clerk, who earlier had filed affirmations, appeared in Court and were cross-examined by counsel for Appellant.

7. The gravamen of their affirmations and evidence was that they had advised the Appellant of the advantages and disadvantages of calling witnesses to give evidence and had advised him of his rights on that regard. They agreed they had not called an expert, but said they had requested details of the regular vehicle technician's information and likely evidence, but Appellant had never supplied it before trial nor had he arranged for the technician to attend their offices to give a statement.

8. Having heard what they had to say on this topic I was not satisfied that they had failed to advise Appellant properly. It appears that this was the rather common case where a person in Appellant's position claims to his legal advisers that a possibly helpful witness exists, but takes no further steps to establish the witnesses' credentials, or to arrange for the witness to attend court.

9. I was not satisfied that the legal advisers had been incompetent or negligent.

10. The appeal is dismissed.

Representation:

Mr. Johnny Chan, S.G.C., for D.P.P.

Mr. Walker Sham, instructed by Au Kong & Tang for Appellant