Lam Poon Ho v. The Queen

CACC000289/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 289 OF 1971

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Coram: Huggins, J.

Date of Judgment: 29th June, 1971.

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JUDGMENT

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1. The Appellant was convicted in the Magistrate's Court of failing to report an accident to the police as required by the Road Traffic Ordinance.

2. The facts were that the Appellant was driving his private motor car when he was involved in a collision with a woman who was crossing the road while carrying a child. The woman and the child were both slightly injured. The accident, however, was entirely (and this appears from the record) the fault of the woman: the Appellant was in no way to blame. The Appellant stopped, got out and went to see what damage had been done. He, however, failed to report the accident, the woman having indicated that she did not want any trouble, but when she subsequently went to a clinic for treatment she was there advised to report to the police and as a result this prosecution followed.

3. The appeal originally was against conviction and sentence. The appeal against conviction has been abandoned because the Appellant pleaded guilty before the Magistrate and no appeal lies. There was some question at one stage in the lower court whether the Appellant had unequivocally pleaded guilty but no question of that kind has been raised before me. One observation I would, however, make is that according to the record (and I shall have another word to say about the record in a moment) the Appellant "Pleaded guilty". Whether it should have read "Plea: 'Guilty'" or whether this is, as it appears to be, a mere statement of fact by the Magistrate, I do not know, but I would once more draw attention to the provisions of s.19(1) of the Magistrates Ordinance, which requires an admission of guilt to be recorded as nearly as possible in the words used by the defendant. Mr. Comber on behalf of the Appellant has complained about the record and suggested that it has not been kept in a very satisfactory manner. How the Magistrate chooses to record the proceedings before him and on what particular piece of paper is a matter for him, but it is important that whatever is recorded should be clearly recorded and it is also very desirable that the entire record should be in chronological order. Moreover, it should be copied exactly. I say that it should be copied exactly because if Mr. Comber is correct - and, of course, I do not have any evidence before me as to the precise manner in which the Magistrate's record was kept beyond the copy in the appeal record - what the Magistrate wrote was: "P.G.": he wrote that on the Summons itself and not on a separate piece of paper. Indeed, the Statement of Findings does indicate that the substance of a summary of the facts was written by the learned Magistrate "in the margin of the Summons" although the copy shows nothing at all noted by him on the Summons itself. The learned Magistrate's notes as appearing in the record before me certainly are not as clear as they might have been and, in particular, what I am told was a previous conviction does not clearly appear as such nor is the "record as given" set out in the Statement of Findings.

4. Turning to the appeal against sentence, I observe that the sentence imposed was one of a fine of $200 and disqualification from driving private motor vehicles. The disqualification was, of course, mandatory once there was a conviction and as the Magistrate rightly pointed out, there was no power to waive disqualification even on the grounds of the existence of special reasons. The learned Magistrate took a serious view of this case and if the facts stated by him were correct there might be some justification for the view that he took. He appears to have been under the impression that when the Appellant alighted from his motor car he proceeded to obliterate some blood marks appearing on the road, an act which the Magistrate interpretated as being intended to destroy evidence. It is conceded by counsel for the Crown in this Court that no such incident took place at all. What in fact happened was that the Appellant wiped some blood from the lip of the child - and it is a reasonable assumption that the reason for his doing that was to ascertain the extent of the injury - nothing more sinister than that.

5. It is submitted on behalf of the Appellant that this particular section of the Road Traffic Ordinance is aimed at the hit and run driver and that really the present case should not have been brought under this section. With respect I think that is going a little too far. Undoubtedly the hit and run driver is within this section but I think that the section was also intended to cover every case where injury is caused, however slight, and that persons who are involved in accidents causing injury are not entitled to come to some private arrangement whereby they agree not to report the matter to the police. That, it seems to me, would open the door to very serious abuse and I think that the Legislature intended to cover such cases as this. Nevertheless, I agree with Mr. Comber that but for one particular matter which was emphasized by the learned Magistrate this case was not in any way a serious one as cases under this section go: the injury was very slight and the Appellant was induced not to make a report by the conduct of the injured persons. But the important matter which the Magistrate drew attention to was the fact that this Appellant is a teacher of driving. As such he could hardly plead ignorance of the law on the matter and it was incumbent upon him to set a good example.

6. In all the circumstances I think that it is out of the question that the case should be dealt with on the basis that no conviction be recorded. There clearly was an offence and the Magistrate was right to convict. That being so, I have no discretion in the matter of disqualification beyond that which the learned Magistrate himself has exercised - to restrict the disqualification to a particular class of vehicle. Nevertheless, I think that the sentence of a fine of $200 was not justified and that it was the result of the misunderstanding of the learned Magistrate as to the facts of the case. In my view a fine of $20 would be proper in this case, having regard to the mandatory disqualification and the obvious result it is going to have for the Appellant. The appeal will be allowed to that extent.

7. I think I should add one word. I have observed on a number of occasions a tendency for Statement of Findings prepared under s.114 of the Magistrates Ordinance to descend to advocacy in support of the decision appealed against. Thus in the present case the learned Magistrate said: "But even if an application for review vitiates a previous judgment (which I do not accept) the above case" (which he had just cited) "is authority for saying that the question is entirely a matter of discretion for the trial judge - even when there are sound grounds for the applications". In passing I observe that the case cited was an English case which had nothing whatever to do with a power of review. If a Magistrate is persuaded that owing to an oversight of some authority he came to a wrong decision, it would not be improper that he should say so in a note at the end of his Statement of Findings but he should not attempt to advance arguments showing that his decision was correct or cannot be upset on appeal. The Statement of Findings in this case was clearly not an attempt to reproduce an oral judgment previously given in open court and it should have been confined to recording the findings made at the time of the conviction and not have included expressions of the learned Magistrate's opinion at the date when he wrote his Statement of Findings. Nor was it necessary to direct this Court or the parties to note that the present appeal was against conviction and sentence and not against the refusal of the Appellant's application to permit him to change his original plea.

29th June, 1971.

Representation: