The Queen v. Chak Kin Wing

HCMA001077/1986

BETWEEN:

Coram: Roberts, C.J.

Date: 13 November 1986

------------------

JUDGMENT

------------------

1. This is an appeal against both conviction and sentence by CHAK Kin-wing, who was convicted by a magistrate on 14th October, 1986, of careless driving and was disqualified from holding a public light bus licence for 12 months and ordered to take a driving test for public light bus driving.

2. A number of arguments have been put forward with great persuasiveness and fluency by Mr. Owen, who has appeared for the appellant. Before considering these, I will briefly summarize the evidence as this was found by the magistrate.

3. Police Constable CHAN Pui-tak, who was the first prosecution witness("P.W.1"),   issued a fixed penalty ticket to the defendant, who had contravened a traffic regulation at Un Chau Street, Kowloon, on the morning of 14th September, 1983. There was some animosity between P.W.1 and the defendant at the time that the fixed penalty ticket was issued. P.W.1 then drove off on his motor-cycle. A few minutes' later he was rammed from the rear by the front of the defendant's public light bus.

4. The defendant denied that there had been any contact between the public light bus and the motor-cycle. According to his version of events, P.W.1 had driven past him, cut across in front of him and thrown down his bike, alleging that P.W.1 had crashed into him.

5. In support of the case put forward by the prosecution, there was tendered in evidence a chemist's report, which was intended to establish that samples of paint taken from P.W.1's motor-cycle were identical with paint samples taken from the P.L.B., thus establishing that there had been a collision between them. The magistrate does not note under which provision of the law that report was admitted. It seems to me that it must have been the intention to secure its admission under section 25 of the Evidence Ordinance, which provides for the admission in evidence of what are called "Government Chemist's Certificates". These are intended to be in the form set out in Form 1 of the Schedule to the Evidence Ordinance.

6. Mr. Owen argued that the purported certificate did not satisfy the requirements of the Evidence Ordinance as to form. It was not entitled "Government Chemist's Certificate", it mace no reference to "sealed packets", it was not signed "Government Chemist".

7. When it is intended by the prosecution to tender certificates under that section, it is important that the proper form, as specified by the Ordinance, should be observed.

8. I would, had this been the only difficulty associated with that certificate, not have ruled that the magistrate was wrong to take account of it, because although the proper form was not used, the document submitted is quite clearly intended to be a Government Chemist's report of the type contemplated by section 25. It is signed "Chemist". At the head of the report are the words "forensic Division Government Laboratory".

9. However, there are other objections of a substantial nature, not as to the production of the certificate in evidence but as to the worth of its contents. I do not think that the prosecution established a proper chain of evidence between the supposed taking of paint samples at the scene of the collision and their examination by the chemist.

10. There are a number of defects. P.W.1 makes no reference to the taking of samples of paint from either of the two vehicles, P.C. 1216 LAU Kim Ming ("P.W.1"), says that he took a specimen of control paint from the part above the front corner bumper of the P.L.B. and "took it to the chemist for analysis." The chemist's report says that it was delivered by another police constable P.C. 10032, P.W.2 refers only to the taking of one specimen of paint from the P.L.B., whereas the chemist's report refers to two.

11. There is nothing to indicate how the specimens got from the hands of P.W.2 into the hands of the chemist, nor the extent to which the different exhibits were separated.

12. Indeed, it is apparent from questions asked by the defendant, who was not represented at the trial, that he was alleging that paint had been taken from his P.L.B. and from the motor-cycle and mixed together.

13. In my view, therefore, no weight ought to be attached to the Government Chemist's Certificate.

14. However, it is apparent from the magistrate's Statement of Findings, that he found both the prosecution witnesses to be credible and reliable, whereas he describes the appellant's evidence in the following terms -

"I had the clear impression from his manner in the witness box that the Appellant was prepared to tell the Court whatever lies came into his head. His account of the officers' behaviour was incredible. I did not believe it and it did not raise any doubts whatsoever in my mind. I convicted accordingly."

15. The two stories are simply not reconcilable. That which was believed was that there was a collision, that which was disbelieved was that there was no contact. Quite irrespective of the supporting evidence of the paint and the Government Certificate itself, I have no doubt that, in view of his findings as to credibility, the magistrate would certainly have reached the same conclusion.

16. Nor do I find it in the least surprising that he rejected the defendant's story as being inherently improbable.

17. I therefore dismiss the appeal against conviction.

18. So far as sentence is concerned, but for one factor I would have seen no reason to interfere with the sentence imposed on the defendant. However, it was drawn to my attention by Mr. Owen, and I have no doubt that it was not in the magistrate's mind at all, that this offence took place in September 1983. The long delay before trial appears to have been due to the failure to serve the defendant with the necessary notice.

19. The record of the defendant, which was put before the magistrate, showed a long list of convictions for a variety of driving offences between October 1983 and August 1986. There were 34 of such offences, including three convictions for careless driving. However, each of these offences post-dated the one of which he was convicted in this trial. Therefore, when considering the appropriate punishment which should be imposed for this offence, he is entitled to be regarded as a man without any previous convictions for driving.

20. Had this consideration been in the magistrate's mind, I have no doubt that he would have taken a substantially different view about the proper sentence which should be imposed.

21. As a man with no previous driving convictions, I do not think that he would have been disqualified for 12 months, even though his conduct on this occasion was of a very dangerous nature, and might have led to a serious collision which could have caused substantial injuries to the police officer involved.

22. Allowing for a clear record, I am satisfied that the proper course is to quash the sentence which was imposed upon him and to substitute instead a fine of $1,000 for careless driving.

23. The defendant will have 14 days to pay.

Representation:

Mr. N. Owen (Hampton, Winter & Glynn) for Appellant

Mr. F. Whitehouse, Senior Crown Counsel, for Crown.