Cheung Por v. The Queen

CACC000293/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 293 OF 1971

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Coram: Pickering, J.

Date of Judgment: 30th June, 1971.

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JUDGMENT

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1. The appellant was convicted before a magistrate of

2. Perhaps surprisingly, despite the fact that at the trial the appellant's whole defence was that he was not in fact the driven of the vehicle at the time of the accident which led to the charges and that he has maintained that attitude before this court, he has appealed only against the conviction of driving while disqualified. In the face of his contention that he was not the driver, he leaves unchallenged the conviction for, at the very same moment, driving dangerously so as to cause grievous bodily harm and driving without third party insurance. The adoption of this apparent anomaly is however the appellant's privilege and will not be allowed to influence me in dealing with his appeal upon his chosen ground, that is, against the conviction for driving while disqualified.

3. The details of the dangerous driving do not concern us for the purposes of this appeal. What is material is the conflict of evidence between the appellant and a Mr. CHEUNG Kwok-nam who claims to have been a passenger in the vehicle driven by the appellant at the time of the accident whereas the appellant's story is that Mr. CHEUNG Kwok-nam was in fact the driver and that he himself was not even in the car when the accident occurred

4. Mr. CHEUNG's evidence was that in the early hours of the 7th of November 1970 he was in the rear seat of a car driven by the Appellant and proceeding down Lung Cheung Road; that only the two of them were in the vehicle and that he, feeling tired, rested his hand and arms on the back of the driver's seat; that he suddenly saw lights shining towards him, opened his eyes and experienced a bang and a collision; that he looked up and saw the appellant open the door of the car saying as he did so, "Let us run fast" and then begin to run. Mr. CHEUNG further stated that by the time he had found his jacket, which he had removed and placed on the back seat of the car, the appellant had run for quite some distance so that the witness was unable to catch up with him. Mr. CHEUNG's further testimony was that he thereupon went to Shek Lei Pui Resettlement Estate, Tsuen Wan, to see a friend of his and to ask him what he ought to do in the circum-stances; that the friend advised him to find the driver and report the accident to the police; that he then telephoned the appellant and told him that he ought to go to the police and that the appellant subsequently came to Shek Lei Pui by car whereupon the two of them went to a police station and reported the accident.

5. The witness denied questions put to him in cross-examination suggesting that he had borrowed the car from the appellant at about 9.50 p.m. on the 6th of November and that shortly before 1 a.m. the next morning he had telephoned the appellant and told him that he had had an accident with the car. The witness agreed that he had telephoned the appellant but said that it was the appellant and not his brother who had answered the telephone. He further stated that the appellant had said on the telephone that he had not reported the matter to the police but had gone home to apply medicine to his forehead which he had injured in the accident and that he, the witness, thereupon arranged to wait for the appellant at a bus terminus at Shek Lei Pui, Tsuen Wan, from where, after the appellant's arrival, they went to make a report to police headquarters in Mongkok. The witness denied that he was reluctant to make a report to the police and that the appellant and the latter's father and brother had had to drag him into a mini-bus in order to go to the traffic office. He agreed that from Mongkok Police Station he had gone with the appellant to Kowloon City Police Station where he, the witness, had been placed on bail of $500 to attend the traffic office at a later date and give a statement. He denied that on this later date, in the presence of the appellant, he had given Inspector CHU Kwong-on a bribe of $600 at the traffic office and said that the reason that his bail of $500 was subsequently returned to him was, according to what Inspector CHU had told him, that the bail was meant to secure his presence at the traffic office to give a statement three days after the accident and as he had gone to the traffic office and given a statement, the money was returned to him. He denied the suggestion that he had not only driven the car dangerously but also paid $600 to escape the consequences. In answer to questions by the Magistrate he said that the appellant had admitted in his presence first to a police constable and later to Inspector CHU that it was the appellant who was driving the car at the time of the accident.

6. These questions from the learned Magistrate came only at the apparent conclusion of the witness's cross-examination and it was only after the Court's questions that Mr. Lawrence Leong, for the appellant, intimated that he had certain evidence which might terminate the case and asked for permission to cross-examine the witness further. On permission being granted, a completely new line of attack upon Mr. CHEUNG emerged. The witness was asked to sign his name three times on a blank sheet of paper and it was then put to him that he had paid $2,500 compensation to the appellant for damage to the latter's car. The witness denied this suggestion and said that on the contrary he had borrowed $2,500 from the appellant and four payments which he had made to the appellant since the date of the accident, totalling $1,200, were in part repayment of this loan and had been made because the appellant had pressed for the money saying that he had to defend himself in connection with the charges and needed money to instruct a solicitor for that purpose. The witness denied that having paid the $1,200 he had promised the appellant a further $1,300 if the latter would plead guilty to the charges.

7. A document allegedly signed by the witness and admitting that he was the driver at the time of the accident and undertaking to pay the defendant $2,500 for damage to the car was shown to the witness who denied that the signature thereon was his. The witness claimed that at one time the appellant had handed him a blank piece of white paper asking him to sign it and claimed that he had refused to sign because the paper was blank.

8. P.C. 9586, HO Ying-tim, attached to the Accident Enquiry Office, Kowloon, said that several hours after the accident this witness, Mr. CHEUNG, together with the appellant, came to his office where the appellant said, "At the time I was the person who drove AK3296" and that the appellant had also said, "My licence was suspended as a result of dangerous driving. Please help me." In fact the appellant has never been disqualified from driving as a result of dangerous driving but he was disqualified on the 31st of December 1969 for driving a private car for hire and driving without third party insurance. That disqualification was for 12 months and before the expiration of that period he was again convicted on December the 17th 1970 for the same two offences as well as for driving a private car for hire, when he was again disqualified for 18 months from driving private cars. On this being put to the police witness the police constable insisted that the appellant had told him that his licence had been suspended as a result of dangerous driving.

9. The former owner of the car gave evidence that he had sold the vehicle to the appellant on the 29th of October 1970, that is some 9 days before the accident and signed a Transfer of Ownership form on that date. He had no knowledge as to whether the appellant had notified the registration authorities of the transfer of ownership.

10. Following a submission of no case to answer, which was ever-ruled, the appellant gave evidence to the effect that he was not the driver of the car on the night in question and that CHEUNG Kwok-nam had borrowed the car at about 9.30 on the evening of the 6th subsequently telephoning him on the following morning at about 1 a.m. when the telephone was answered by the appellant's younger brother who handed the instrument to the appellant who was thereupon told by CHEUNG Kwok-nam that he had had a collision in Princess Margaret Road and was then at the bus terminus at Shek Lei Pui. According to the appellant, on being asked by the appellant whether or not he had reported the accident to the police, Mr. CHEUNG Kwok-nam said that he had not and had left the car at the scene of the accident; on the appellant's telling Mr. CHEUNG that he should report the accident the latter roplied that he would be very scared to go alone to do so and asked the appellant to go with him; that the appellant together with his father and younger brother went to the bus terminus at Shek Lei Pui; that the appellant was present when a discussion took place with Mr. CHEUNG's friend at Shek Lei Pui and that, they having left the friend, Mr. CHEUNG became unwilling to go to the traffic office so that the appellant, his father and younger brother dragged him-into a mini-bus to return to Kowloon; that at Kowloon Mr. CHEUNG was still unwilling to enter the traffic office and that the three of them had to push him into that office, the appellant's father and younger brother leaving after that had been done.

11. The appellant denied having told the two police officers that he had been the driver of the car and denied telling the police constable that he had been disqualified because of dangerous driving.

12. Shown the document alleged to be an admission by Mr. CHEUNG of the fact that he was the driver involved in the accident, the appellant admitted that the whole document apart from the second signature thereon was in his, the appellant's writing. He claimed the document had been signed by Mr. CHEUNG on the 10th of November.

13. When he had returned to the traffic office at 9 a.m. on the 11th of November he had seen Mr. CHEUNG Kwok-nam there with Inspector CHU Kwong-on and had seen the latter holding $600. His evidence went on, "As far as I could see, CHEUNG Kwok-nam gave it to him - I saw CHEUNG Kwok-nam hand $600 to Inspector Chu - Inspector CHU Kwong-on, seeing me, quickly put his hand into his right trousers pocket". The four payments totalling $1,200 which he had received from CHEUNG Kwok-nam since the date of the accident were to be followed by a balance of $1,300, this balance being paid to the appellant by Mr. CHEUNG in consideration of the former pleading guilty to the three offences charged.

14. There was no cross-examination of the appellant in regard to the disputed document alleged to be an admission by Mr. CHEUNG Kwok-nam of the fact that he had been driving the car at the time of the accident and undertaking to pay $2,500 compensation to the appellant.

15. At this stage of the evidence the hearing was adjourned for eight days and upon the resumed hearing Mr. Francis Woodley Kendall, an accredited examiner of questioned documents, who has given evidence in the Colony in that capacity on numerous occasions, was called to support the authenticity of Mr. CHEUNG Kwok-nam's signature upon the disputed document. Mr. Kendall gave it as his positive conclusion that the second signature on the disputed document, (Exh. D1) was identical with the three signatures which CHEUNG Kwok-nam had been asked to make upon a blank piece of paper in court at the previous hearing. Mr. Kendall agreed with the court that he was unable to read Chinese but said that most of his work in court related to Chinese characters and gave it as his opinion that forgery of Chinese characters is far easier to determine than that of Western script and that a knowledge of the written Chinese language is not essential for the purpose of detecting such forgery. At this stage the case was adjourned to a later date to enable Mr. Kendall further to examine the specimen signatures of Mr. CHEUNG Kwok-nam and that alleged to be his on the disputed document.

16. At the resumed hearing Mr. Kendall referred to his experience in the forgery of Japanese, Chinese and English documents during the course of the Second World War and to his task of examining thousands of Chinese signatures on motor insurance forms and claim forms on behalf of Insurance Companies. Having magnified the specimen signatures of CHEUNG Kwok-nam and the disputed signature, Mr. Kendall maintained his opinion that the signatures were made by the same person.

17. Leave was given to the Crown to call evidence in rebuttal of that of Mr. Kendall and Inspector TAI Kwong-yue, who has been engaged in document examination and handwriting since July 1968, following a course of instruction with the Glasgow City Police, produced further enlarged photographs of the specimen signatures and the disputed signature and after referring to the dissimilarities gave it as his expert opinion that the contested signature was a forgery.

18. There were seven grounds of appeal, the first three of which were dealt with compendiously by Mr. Leong for the appellant. Those grounds were that the learned magistrate failed to give equal credibility to the appellant, failed to take cognizance of the fact that none of the material evidence of the appellant was challenged in cross-examination and had, in accepting the evidence of CHEUNG Kwok-nam and P.C. HO Ying-tim, rejected that of the appellant. These grounds are so broadly stated as to lack any real substance. The magistrate's alleged failure to give equal credibility to the evidence of the appellant, his acceptance of the evidence of prosecution witnesses and rejection of that of the appellant, is his privilege and, indeed, duty where he disbelieves the appellant and finds the evidence of the prosecution witnesses convincing.

19. The complaint that the "material evidence" of the appellant was not challenged, is only part of the story. In so far as that complaint relates to his production of the disputed document, it is true that one might reasonably have expected cross-examination of the appellant upon the bona fides of this document and that none was forthcoming. But it became transparently clear in the course of the trial that this failure to cross-examine the appellant was anything but an acceptance of his evidence in regard to the document and an acknowledgment of the latter's validity. Not only was Mr. Kendall cross-examined at length upon his expert evidence as to the genuineness of Mr. CHEUNG Kwok-nam's purported signature upon the disputed document, but rebuttal evidence was called for the purpose of refuting Mr. Kendall's opinion. This was the clearest of challenges to the validity of the document and in the light of that challenge it is impossible to hold that failure to cross-examine the appellant about the document should have been construed by the learned magistrate as an admission of its authenticity.

20. In so far as the complaint is that it was never put to the appellant in cross-examination that he was in fact the driver of the vehicle at the time of the accident, this failure cannot be construed as an acceptance of the appellant's denial of that allegation because it was abundantly clear to the Court from the preceding evidence of Mr. CHEUNG Kwok-nam, and from the very nature of the charges, that the whole case for the Crown turned upon that very allegation.

21. The fourth ground of appeal was that the learned magistrate had failed to take cognizance of the prosecution's failure to call Inspector Chu as a witness either in chief or in rebuttal. Certainly the prosecution case might have been more complete had Inspector Chu been called to deny the acceptance of the alleged bribe of $600 and to affirm the admission said to have been made to him by the appellant, in the presence of Mr. CHEUNG Kwok-nam, that the appellant was the driver of the car at the time of the accident. It is, however, for the prosecution to decide what witnesses they will call and even without any evidence from Inspector Chu, there was evidence before the learned magistrate ample for him to reach a decision both as to the alleged bribe and the alleged admission. This ground of appeal must fail.

22. It was next alleged that the magistrate had failed to take cognizance of the qualification, experience and background of Mr. Kendall. Mr. Kendall was one of two expert witnesses as to the genuineness or otherwise of the disputed signature of Mr. CHEUNG Kwok-nam and it is erroneous to say that the magistrate failed to take account of his qualifications and experience. The magistrate considered Mr. Kendall's evidence very carefully and entertained considerable doubt as to whether Mr. Kendall was competent to express an opinion on Chinese characters or writing, and even greater doubts as to whether his conclusion regarding the signature of Mr. CHEUNG Kwok-nam was correct. Having considered the evidence of Mr. CHEUNG Kwok-nam himself and that of the two experts, the magistrate was satisfied beyond any doubt that the disputed document was not signed by CHEUNG Kwok-nam. It was the magistrate's task to assess the evidence of the two experts and he performed this task carefully. As it seems to me, no amount of deference to the qualifications and experience of Mr. Kendall would have made any difference to the result of the assessment which the magistrate made.

23. To the complaint that the learned magistrate failed to apply the principle that an accused only needs to raise a doubt and need not satisfy the court of his innocence, it is sufficient to say that the appellant in this case failed to raise that necessary doubt, the magistrate finding as a fact that he was the driver of the car in question at the time of the accident, that the car was being driven in a dangerous manner, that injuries were caused to the driver of the taxi which the appellant's car hit and to two passengers therein, that the appellant was disqualified from holding or obtaining a driving licence for private cars at the relevant time and, there being no evidence adduced by the defence to show that the appellant's vehicle carried any third party insurance, the necessary doubt had not been raised in the magistrate's mind in regard to any one of the ingredients which go to constitute these three offences.

24. The remaining ground of appeal was that that the learned magistrate failed to distinguish between rebuttal evidence and new evidence. If I understood Mr. Leong aright, his complaint here was that Inspector Tai had effected a comparison between the disputed signature and the third of the specimen signatures made by Mr. CHEUNG Kwok-nam in court whereas Mr. Kendall had used the first of these signatures for the purposes of comparison. All three signatures were in evidence before the Court and the purpose of the rebuttal evidence was to challenge Mr. Kendall's conclusion that the signature upon the disputed document was the genuine signature of Mr. CHEUNG Kwok-nam. To demonstrate his point, an expert is entitled to select his tools provided that they be admissible tools and the selection for this purpose of a specimen signature already in evidence but other than that picked upon by Mr. Kendall did not depart from the concept of rebuttal. This ground of appeal also must fail and the appeal be dismissed.

Representation:

Lawrence Leong (S.F. Sun) for appellant

Duckett S.C.C. for Crown.