HKSAR v. Chan Kwong Wai

HCMA000788/1997

1997, NO. MA 788

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Leong, J. in Court

Date of hearing: 5 November 1997

Date of delivery of judgment: 11 November 1997

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J U D G M E N T

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1. The appellant was convicted by a magistrate of being the driver of a public light bus, without reasonable excuse failed to take all reasonable precautions to ensure the safety of a passenger. He was fined and ordered to pay costs. He now appeals against conviction.

2. The main ground of appeal is that the magistrate failed in his duty in assisting an unrepresented defendant.

3. The facts of this case are simple. The appellant was the driver of a public light bus. On 8th October 1996, PW1, a lady and her husband PW2 were passengers on board the appellant's public light bus which was travelling along Kennedy Road. When the public light bus reached No.39 Kennedy Road, PW1 called out to the appellant to stop for her to alight. After it stopped, she got up from her seat which was on the second row counting from the front. She walked towards the exit door which was then wide open, followed by her husband. When she was about a person's width from the door, the minibus suddenly moved forward. It stopped. But it jerked forward again. In the course of this, PW1 lost her balance and was thrown along the aisle to the back of the minibus. She was injured on her back and required physiotherapy treatment as a result. The public light bus after jerking forward, moved a short distance before coming to a halt. At that time no other passenger was getting off at the same place as the two witnesses. PW2 gave similar evidence confirming the evidence of his wife.

4. The appellant did not give evidence. However, in his cross-examination of the witness, he put his case that he had made sure from the left rear view mirror that all passengers had alighted before he moved the bus and every time when there was a number of people alighting or when the road was incline, he would make sure he stopped the bus, pulled the hand brake, put the gear in neutral and opened the door. He put to the witness that he had not jerked the bus and he could not have moved off since he had pulled his hand brake. His case was that the incident involving PW1 did not happen. The witnesses disagreed.

5. What was put by the appellant was never substantiated by him.

6. The magistrate convicted the appellant after he was sure of the prosecution evidence.

7. The appellant was not legally represented at the trial and from the notes of proceedings, the magistrate had at the commencement of the trial, explained to the appellant the law and procedure relating to the trial, his rights and the burden of proof. After close of prosecution case, the magistrate had explained to the appellant his rights as to calling evidence and the appellant chose not to give or call evidence. The notes of proceedings also indicate that the magistrate had on various occasions assisted the appellant in putting forth his case and in cross-examination of the prosecution witnesses. It should be noted, the magistrate in fact told the appellant he could tell him what he wanted including that the incident never happened. The appellant was given the opportunity to put forth all the defence which he could have, including if the incident did happen, it was not without reasonable excuse. But he had chosen not to do so and that was a choice he was entitled to make.

8. Mr Tse for the appellant referred to a number of cases on the duty of a magistrate in assisting an unrepresented defendant. These authorities have been reviewed in The Queen v. Tam Kin Wing [1997] HKLRD333. Suffice to say these authorities set down the duty to provide assistance as well as the extent of such assistance and make it clear that a magistrate is not obliged to conduct the defence for the unrepresented defendant.

9. Mr Tse complained that the magistrate did not explain to the appellant that he had a defence of reasonable excuse. It is correct that the magistrate did not say in so many words that the appellant had a defence of reasonable excuse. However, the fact the summons was read out to the appellant which the appellant indicated he understood was sufficient to indicate to the appellant that one of the elements of the offence is without reasonable excuse and if he has a reasonable excuse, that offence is not proved. The magistrate had afforded the appellant all the opportunity to put his case and nothing in the case the appellant put indicate he had a reasonable excuse.

10. Trainor J. in R v. Wong Hing Cri.App.193/1979 [referred to in Tam Kin Wing] said that the court must ensure that the accused understands the charge that he faces and help him make his defence if he feels that the accused is unable to do so.

11. The appellant was not unable to make his defence.

12. The magistrate had done all that was required of him at the trial to assist the unrepresented appellant. The finding is a finding of fact on evidence which the magistrate accepted and the conviction is based on the finding of fact. The appeal must be dismissed.

Representation:

Mr David Leung, S.G.C., for HKSAR/Respondent

Mr Joseph Tse, inst'd by M/s S.H. Chan & Co., for Appellant