HKSAR v. Gill Manjinder Singh

HCMA 82/2025

[2025] HKCFI 5530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 82 OF 2025

(ON APPEAL FROM ESS 21316 OF 2024)

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J U D G M E N T

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1.The Appellant was convicted after trial by the Magistrate for “driving a motorcycle when the passenger was not wearing an approved helmet”, contrary to regulations 3(2) and 12(1) of the Road Traffic (Safety Equipment) Regulations, Cap. 374F made under section 10 of the Road Traffic Ordinance, Cap. 374.

2.It was alleged that on 19 July 2024 at 10:17 pm near lamppost 27812, Connaught Road West Flyover (“Location”), the Appellant did drive a motorcycle displaying registration mark ZH3639 (“Motorcycle”) when there was a passenger riding on it who was not wearing an approved protective helmet securely fastened to the passenger’s head.  The Appellant was fined HK$500. The Appellant now appeals against his conviction. 

The Prosecution Case

3.PW1, PC19999, saw the Appellant drove the Motorcycle with a passenger without a helmet on board.  He was then conducting an operation and set up a roadblock on the eastbound driveway of Connaught Road West Flyover.  The sky was clear with sufficient illumination and the traffic was medium.  His view was not obstructed. 

4.PW1 saw the Appellant drove the Motorcycle along the leftmost lane at about 100 metres from him.  There was a passenger who was not wearing a helmet riding behind the Appellant on the Motorcycle.  The passenger then jumped off the Motorcycle.  The Appellant and the passenger were intercepted and brought to PW1.  PW1 asked them to provide documentation, in particular, a permit not to wear a helmet during driving.  The Appellant was able to produce the exemption permit while the passenger failed to do so. 

5.Under cross-examination, PW1 was on the rightmost lane towards the rear of the roadblock and the Motorcycle was on the leftmost lane.  He witnessed that the passenger jumped off the Motorcycle 1 to 2 seconds after he first noticed the Motorcycle.  While there were 3 driving lanes at the Location, since the police blocked 2 lanes, traffic was only allowed to drive on the leftmost lane. 

6.PW1 denied that he only investigated with the passenger and not with the Appellant.  He also disagreed that it was only his assumption that the passenger and the Appellant were riding on the same motorcycle.

The Defence Case

7.The Appellant agreed that he was the driver of the Motorcycle and was subsequently stopped by the police.  The crux of the defence case was that there was no passenger who rode on the Motorcycle at the material times.  The Appellant stated that he started his part-time delivery work at around 1900 hours.  At around 2200 hours at Kennedy Town, he received a call from his wife asking him to return home as soon as possible because their daughter had a fever. 

8.The Appellant drove on the leftmost lane on the Flyover. As he approached the roadblock, he saw someone walking on the Flyover about 10 to 15 metres on the left ahead of him, who was stopped by the police.  The Appellant drove forward as instructed.  Then, the police officer started enquiring with him.  The Appellant also saw that PW1 investigated with the aforesaid person about 5 to 10 metres away from him.  

9.Under cross-examination, the Appellant first noticed the police officer was when the Motorcycle was just ahead of the “Stop” sign of the roadblock.  He first noticed PW1 when he was questioned by another police officer and that other person on the Flyover at about the same time.  He had no idea where that other person came from, but at the same time, he did not see any person alight from any vehicle.  

10.The Appellant disagreed that the passenger not wearing a helmet rode on his back when he drove the Motorcycle.  The Appellant said that it took him around 3 to 4 minutes to reach the roadblock from the slip-road, during which he did not see any person alight from any vehicle. 

Magistrate’s Findings

11.The Magistrate stated that he would exercise care and caution when dealing with the evidence of PW1 in light of the absence of other independent witnesses and this was only a one-against-one nature of the case.  

12.Secondly, concerning PW1’s evidence, after considering all the circumstances, the Magistrate found that PW1’s evidence was clear and direct.  The lack of CCTV or not calling the alleged passenger as a witness did not undermine his evidence.  The Appellant argued that PW1 could not plausibly see the passenger jumped off the Motorcycle at a distance of 100 metres. 

13.The Magistrate considered that it was the evidence of both PW1 and the Appellant that only the leftmost lane was opened for traffic and the speed of the vehicles was slow.  The court found that it was quite easy for him to spot the incident as there was only 1 line of traffic. The Magistrate found PW1 to be honest and credible. 

14.For the Appellant’s evidence, the Magistrate considered that the Appellant’s case was that the passenger suddenly emerged from the road.  The Magistrate found it impossible for someone to suddenly emerge from nowhere as the Flyover was a driveway rather than a pavement. 

15.Moreover, the passenger was to the left ahead of the Appellant when the Appellant first saw him.  With reference to the photos submitted by the Appellant, the left side of the leftmost lane was the very edge of the Flyover where there was no more road.  No one could possibly emerge from the left side of the Flyover. 

16.The Magistrate did not believe in the Appellant and rejected his evidence.  The Court came to the only and irresistible inference that the Appellant was driving the Motorcycle, with a passenger who did not wear a helmet riding on it, therefore convicted the Appellant accordingly.  

17.While for the review hearing, the Appellant submitted fresh evidence which would support his case and undermine the credibility of PW1 that would include:

(1)  a video captured by Mr Vihang, who he said was the “passenger” as alleged by the police (“Video”);

(2)  the chat records of himself;

(3)  the chat records of that witness, Mr Vihang; and

(4)  calling Mr Vihang as witness.  

18.The Appellant alleged that he did not know the passenger, therefore, he could not obtain the Video and chat records of Mr Vihang.  

19.The Magistrate considered the Court of Final Appeal decision in Mohammad Mahabobur Rahman v HKSAR [2010] 13 HKCFAR 20.  The Magistrate refused the Appellant’s application to adduce the video and chat records of Mr Vihang because the Court was not satisfied that they would be relevant to the issue in dispute.  The chat records did not mention anything about the incident at the material times.  The timestamps of the chat records were either before the offence time, that is at 2207 hours, or 20 minutes later, at 2226 hours, without stating what had happened during the offence period.  For the video, it was short and panned very quickly.  It could not capture anything meaningful and would not be helpful to the Court’s decision on the matters.

20.The Magistrate allowed the Appellant’s application to adduce his own chat records which were relevant to his assertion that his daughter was sick and would have been admissible during the trial.  However, based on all the evidence available, including the Appellant’s chat records, none of his arguments led the Court to come to a different conclusion as to the credibility of PW1.  Therefore, the Magistrate dismissed the review and confirmed the previous decision.  

Grounds of Appeal

21.The Appellant has put forward the following grounds of appeal summarised by the Respondent: 

(1)  Ground 1, PW1 was incredible and unreliable; 

(2)  Ground 2, the police failed to establish that the Appellant and the passenger were acquaintances;  

(3)  Ground 3, the Prosecution failed to establish the motive for the Appellant to carry the passenger.  On the other hand, the Appellant substantiated his claim that he was rushing back home for his daughter; 

(4)  Ground 4, there were incorrect names and HKID in the summons; 

(5)  Ground 5, the case solely built upon the evidence of PW1 without any corroborative evidence (such as video footage, other eyewitnesses, or mobile communication records) to substantiate the allegation; 

(6)  Ground 6, the Magistrate erred in failing to consider alternative possibilities that could exonerate the Appellant and failing to give the Appellant the benefit of doubt; 

(7)  Ground 7, the Magistrate erred in failing to admit the WhatsApp chat records of Mr Vihang.  Moreover, the Prosecution did not call the passenger.  Should the other grounds of appeal fail, the Appellant invited the Court to summons the passenger; 

(8)  Ground 8, it is illogical and impractical for the Appellant to carry a stranger as a passenger without a helmet while the Appellant was rushing home for a personal emergency; 

(9)  Ground 9, PW1 held prejudiced and unmeritorious assumption that the passenger left the Motorcycle solely because PW1 and the passenger shared the same Indian origin.  PW1 falsely gave evidence that he witnessed the passenger ride behind the Appellant on the Motorcycle; and

(10)  Ground 10, the Magistrate erred in convicting the Appellant unsupported by the evidence.  

Respondent’s Submissions

22.On Grounds 1 and 9 that concern the credibility and reliability on PW1.  In relation to Ground 1, the Respondent would say that there was no evidence to say and suggest that PW1 was incredible or unreliable, nor is there anything suggesting PW1’s evidence was inconsistent, contradictory or fabricated.  The Magistrate had already carefully assessed his evidence before concluding that he was honest and credible.  The Magistrate, having assessed his evidence against the Appellant’s argument and all circumstances of the case, concluded that it was quite easy for PW1 to witness that the passenger jumped off the Motorcycle because, according to both PW1 and the Appellant, only the leftmost lane was opened for traffic and the speed of the vehicle was slow. 

23.In relation to Ground 9, there was no evidence in support of the alleged prejudice, unsupported and unmeritorious assumption held by PW1.  PW1 himself witnessed a passenger, who was not wearing a helmet, ride on the Motorcycle behind the Appellant then jump off the Motorcycle.  The Magistrate concluded that it was quite easy for him to witness the passenger jump off the Motorcycle and he was found to be an honest and credible witness, so this ground also fail. 

24.Ground 2, the Respondent would say that the Prosecution is not required to establish that the Appellant and the passenger were acquainted or knew each other.  The police did not conduct investigations on the communication records between the Appellant and the passenger would neither undermine the Prosecution case nor assist the Appellant’s case.  

25.Grounds 3 and 8 concern the same issue, saying that it was illogical and impractical for the Appellant to carry the passenger while he was rushing back home to care for his sick daughter.  Firstly, the Respondent would say that the Prosecution is not required to establish any logical reason or motive for the Appellant to carry any passengers.  The claim that the Appellant when rushing back home to care for his daughter was neither here nor there.  

26.The Magistrate was aware that the Appellant’s daughter was sick at the material times and also allowed the Appellant to adduce his chat records relevant to such assertion during the review hearing.  However, after considering all the evidence available, the Magistrate concluded that even that the Appellant was rushing back home for his daughter, that would not lead the Court to any different conclusion. 

27.Ground 4 is simply not relevant to the case.  The errors would not lead the court to come to a different conclusion.  

28.In relation to Ground 5, the Respondent would say that there is no requirement that any corroborative evidence should be adduced to support the captioned charge.  The Magistrate had already reminded himself of the one-against-one nature of this case and a lack of independent witness, and care and caution should be exercised when dealing with the evidence of PW1.  

29.In relation to Ground 6, it saying that the Magistrate had failed to consider alternative probabilities was without basis.  There was no evidence in support of any alleged alternative probabilities.  The Magistrate having fully considered all the available evidence, including but not limited to the photos submitted by the Appellant, the Appellant’s evidence, and PW1’s evidence, before drawing the only and irresistible inference against the Appellant.

30.In relation to Ground 10, the court had already attached full weight to PW1’s evidence, given his credibility and reliability, and held that the Prosecution had proved the case beyond all reasonable doubt.  

31.Ground 7, on the chat records of Mr Vihang, the Magistrate had also fully considered the request to admit fresh evidence and correctly refused the request to admit the video and the chat records.  Even if the chat records and the video had been adduced during the trial, the court would attach little, if not no, weight to the same given its irrelevance.  And also, since they are of doubtful relevance, applying the case of Mohammad Mahabobur Rahman, the application to adduce fresh evidence should be refused.  

32.And also concerning the calling of Mr Vihang as a witness, the Appellant argued that the passenger should have been called by the Prosecution.  However, firstly, the Respondent will say that the Appellant did not seek to call the passenger as a witness during the trial.  On the review hearing, the Appellant was presented with a second chance to call him as a witness, but the Appellant did not call Mr Vihang at the substantive review hearing.  He did not provide any reasonable explanation, but simply saying that he is not coming.  

33.In conclusion, all the grounds relied on by the Appellant have not been made out and the conviction of the Appellant was neither unsafe nor unsatisfactory.  So the appeal against his conviction shall be dismissed.  

Consideration

34.In the Court of Final Appeal case of HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial Court.  The judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.

35.The Court recognised that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand.  Hence, it must exercise caution when considering findings of fact based on oral testimony.  Yet, despite those limitations it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law. 

36.Firstly, on Grounds 1 and 9, concerning the credibility and reliability of PW1, the Magistrate had the opportunity to receive PW1’s evidence first-hand.  He knew full well it was a one-against-one case and did exercise caution in dealing with PW1’s evidence, and particularly mentioned that it was an observation from about 100 metres.  However, as there was only the leftmost lane opened and the speed of vehicles was slow, it would be easy for PW1 to make the observation.  There was nothing improper for the Magistrate’s analysis.  Grounds 1 and 9 fail. 

37.As to Grounds 2 to 6, concerning the lack of passenger’s evidence nor other corroborative evidence such as CCTV or independent witness, the benefit of doubt shall go to the Appellant.  Further, the Appellant was rushing home and there was no motive to carry any other passengers.  However, there is no requirement in law in the circumstances to prove the relationship between the Appellant and the passenger or any underlying motive.  The lack of CCTV or passenger’s evidence was neither here nor there.  

38.The Magistrate had already duly considered and analysed the Appellant’s evidence but found him not credible, particularly as to the actual scene.  From the photos, one may see that the Location was that it was simply impossible or unlikely for someone suddenly emerging from where there were only flyover and driveway but no pavement.  The Magistrate’s analysis could not be faulted.  Therefore, these grounds also fail. 

39.On Grounds 7 to 8, firstly, as to the video and chat records of Mr Vihang, it must be noted that during the review hearing, Mr Vihang was not called upon to give evidence by the Appellant despite without the objection by the Prosecution.  Secondly, the Magistrate also considered that the chat records did not disclose relevant material, and the video was too short and quick, without showing material and meaningful captures.  It was right for the Magistrate to refuse the Appellant’s application to admit fresh evidence in the circumstances. 

40.While for the Appellant’s own chat record, which was admitted showing his daughter was sick, it did not render the Appellant carrying passenger impossible or doubtful, especially Appellant’s evidence was not accepted after all.  Therefore, all these grounds also fail.  

41.Lastly, on Grounds 9 to 10, there was nothing in the statement of finding or anywhere showing any bias or prejudice as to the Appellant’s nationality.  The overall evidence against the Appellant was sound and solid, based on PW1’s observation.  So these grounds also fail. 

42.On rehearing, I am also satisfied that the Appellant’s guilt had been proven beyond all reasonable doubt.  Therefore, the conviction do stand and the appeal against conviction is dismissed accordingly.