Lam Wai-kuen v. The Queen

CACC000326/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 326 OF 1973

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Coram: Trainor J. in court.

Date of Judgment: 25 July 1973

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JUDGMENT

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1. LAM Wai-kuen was charged in the Magistrate's Court at Tsuen Wan with: careless driving, assaulting a police officer in the execution of his duty and obstructing a police officer. According to the record of the case the magistrate made the following note at the conclusion of the trial:

and later, having heard the solicitor for the accused:

"B.C. Defendant discharged without conviction conditionally upon being of good behaviour for six months own recognizance $100. Special condition: To pay $100 costs of prosecution."

A notice of appeal against conviction was filed.

2. Mr. Hampton who appeared for the appellant raised at the outset of the hearing the point that the magistrate by his note indicated that he had not convicted the appellant on the second or third counts and asked for an adjournment to frame and file a fresh notice of appeal and asked that time be extended to enable him to do so.

3. Having heard what he had to offer and reading the record of the case I considered that the word "recording" had inadvertently been omitted before the word "conviction" and that the learned magistrate intended to deal with the matter pursuant to the provision of Section 36 of the Magistrates Ordinance. In the circumstances I held the appeal as framed was properly brought.

4. There were two grounds of appeal:

5. Mr. Hampton relied on the second ground only. He submitted that the finding by the learned magistrate that the appellant was guilty on the second and third counts was against the weight of the evidence. He also maintained that although there was evidence on which to base such a finding nevertheless it was so contradictory and unsatisfactory that it would be unsafe to allow such a finding to stand. In support he drew attention to the evidence given in the court below on the charge of careless driving which was dismissed.

6. The evidence for the prosecution was given by a police sergeant and a police constable. The evidence of the driving offence given by the sergeant appears to have been rather vague but might be summarised as follows: The sergeant was in the left hand seat in a police vehicle driven by the constable in the outer or fast lane in Kwai Chung Road. Approaching the Container Complex he said he noticed a minibus, travelling at about 35 m.p.h, in the middle lane overtaking his vehicle. He said he felt a jerk as the driver of his vehicle suddenly braked to let the minibus overtake. At this time the vehicles were 2-3 feet apart. He said there was no signal from the driver of the minibus. He said the minibus passed a lorry and then returned to the middle lane. He said he instructed the constable to pursue the minibus and he stopped it at the Container Complex. The driver was the appellant.

7. The constable's evidence was that as he drove his police vehicle in Kwai Chung Road near the Container Complex in the outer lane he suddenly noticed a minibus cutting across his path from left to right. He said that to avoid a collision he had to brake hard and practically stopped. He said the minibus continued ahead of his vehicle and he "engaged gear" and gave chase. When he was about four lengths behind the bus he sounded his horn and the bus "swerved" back to the middle lane, and the sergeant indicated to the driver of it to stop. The constable was not cross-examined on his evidence so far as the driving offence was concerned.

8. Counsel maintained that one might well think that if the prosecution evidence were accepted that, at the very least, the driver of the minibus was guilty of careless driving.

9. The appellant, a lady, who holds a licence to drive public light buses and is a driving instructor had a very different tale to tell. She said that she was driving at about 30 m.p.h. in the middle lane behind a big lorry which she intended to pass out. She said she signalled her intention with her indicator so to do and looked in the mirror. She saw a police vehicle some distance behind travelling at high speed which she waved on; she did not pull out. She said the lorry turned into the Container Complex and the police vehicle passed her and then pulled into the centre lane ahead of her. She indicated to the court below how a police officer kept pointing a finger, and said she understood that he was signalling her to stop. She said she checked to her left and slowly pulled in and stopped. The police vehicle stopped abreast of her.

10. Having heard these two very conflicting stories the learned magistrate dismissed the charge of careless driving and counsel would have this court concluded that the learned magistrate did not believe the evidence of the prosecution witnesses. What happened subsequently to the appellant stopping the minibus was equally controversial.

11. The sergeant said he alighted from the police vehicle, instructed a police constable to direct the traffic and approached the minibus. He said that as he got nearer to it he realised that the driver was a female. He asked her for her driving licence and told her he would prosecute her for careless driving. To this, he said, the driver said she had no driving licence, and that the bus had a disc and a registration number and the sergeant could prosecute the owner of the bus. He said he explained that she was the offender, not the owner, and asked for her name and address. This the driver refused to give and insisted that the sergeant prosecute the owner, adding that the owner would make her produce the licence.

12. Although the record up to that point gives the impression that the sergeant's evidence was to the effect that the driver did not possess a licence at all it would appear from what followed that he was told that she did have a licence because later in his evidence he said the appellant said she had held a licence to drive a minibus for the past nine years. The sergeant said he was sceptical of this because he knew that minibuses existed for less than nine years, and, moreover, the driver's apparent age did not seem appropriate to having had a licence for so long. He said he told the driver he intended to take her to the police station and if she could produce a licence she would be summonsed and not arrested. He said he again asked the appellant for her name and address but she refused to give it and scolded him. He said that he removed the key of the minibus but the appellant snatched it back. He said he again explained the position to her and told her he would have to remove her from the vehicle and take her to the police station. At this time, the sergeant said, a man arrived, (a friend of the appellant) and tried to persuade her to go to the station but she would not listen and scolded fiercely. The sergeant said the appellant was told she would be charged with obstructing a police officer if she did not follow him to the station and as she showed no sign of complying and as 1C minutes had already been spent in futile argument he caught her hand to take her out of the bus. He said he was bitten on the thumb which bled. He said he eventually "urged her" on board the police vehicle. The appellant, he said, denied he had any right to do so and said she would engage a lawyer to prosecute him for indecent assault. On the way to the station the sergeant said, he cautioned the appellant and told her that he intended to prosecute her for the three offences with which she was subsequently charged. On arrival at the police station he again asked the appellant her name and address. On this occasion she gave them and he then entered them in his notebook.

13. The time of the entry in the notebook was a point on which Mr. Hampton laid considerable stress and I shall deal with it later.

14. In cross-examination the sergeant said the appellant left the mini-bus by herself and that he did not touch her until he grabbed her hand to take her to the police vehicle. He said he grabbed one of her hands in two of his, and maintained he had not touched any other part of her body. He said if the appellant had injuries in the clavicular region he could not explain it and denied he had grabbed her shoulder and twisted her arm up her back. He denied that the appellant had given her name and address, and that his evidence that he only got them in the police station and then entered them in his notebook was to cover up the fact that he knew them from the start. He denied that seeing a pretty girl driving a minibus he stopped her and, with an ingratiating smile, asked for her licence. He denied that when the appellant said her age was 27 he replied "Oh no. More like 17". He denied that the appellant said "I do (have a licence). If you don't believe me issue a normal form 16." and that her knowledge of procedure made him very angry.

15. It was put to the sergeant in further cross-examination that he opened the door, snatched the ignition key and commenced to pull the appellant from the car; that on this happening the appellant told him to withdraw; that if he wanted to arrest her to get a woman police officers and if he did not let her go she would sue him. This he denied.

16. The sergeant also denied that a Mr. Tong who had arrived on the scene offered to go and collect the appellant's driving licence and that to this offer he the sergeant replied "No. She must go to the police station in our vehicle". He denied he pushed the appellant into the police vehicle by placing his knee in her back. He further denied that he threatened to shoot the appellant, or that she ever shouted in pain. He denied she told him if he did not release her she would shout out "indecent assault".

17. The police constable who was with the sergeant having told of the driving incident and the stopping of the appellant's car said that about 10 minutes later he descended from his vehicle to open the door for the appellant to enter. He said he had not seen what went on and heard only one or two sentences. Immediately after, however, on cross-examination, he said he turned around when he heard the sergeant say "You bit me". He said he saw the sergeant and the appellant struggling. He demonstrated how the appellant was waving her hands in the air. Eventually he said the sergeant grabbed her hand and pulled her towards police vehicle. He said that near the vehicle the sergeant released the appellant and told her to get in, which she did completely voluntarily and sat down. In the vehicle, the witness said the sergeant cautioned the appellant who replied "I am not afraid of you. I've got people who are police. I'll engage a lawyer to suit (sic) you-make you lose your stripes. Make you demote". (Nothing of this was said by the sergeant in his evidence). He said the sergeant stood in the police vehicle writing the caution. The following cross-examination then immediately ensued:

The witness then went on to say that he did not see the sergeant write anything before boarding the vehicle. He was asked if the sergeant asked the appellant to sign to which he replied "I was driving. I saw no more.". He said he was paying attention to his driving and although the sergeant was sitting in front with him and the appellant behind he did not see anything other than that the sergeant started writing as soon as he boarded the vehicle.

18. The appellant's story was that the sergeant, from his seat in the police vehicle which was abreast of the minibus, asked her if she had a licence. On being told yes he said "I mean a minibus licence". The appellant said she told him she had and he then asked her name. She gave this and was asked what her age was. She said she was 27. To this the sergeant replied "more like 17"; a reply which provoked laughter in the police vehicle. She said she was asked if she had her licence with her and when she said she had not the sergeant said she would have to go to the police station and descended from his vehicle. She said he came over, snatched the ignition key and told her to leave her vehicle. She said she remained seated whereupon the sergeant grabbed her wrist. He told her if she had not got her licence she would have to go to the station. On this, the appellant said, she told the sergeant to give her Police Form No. 16 which provides for a driving licence to be produced in a police station. She said the sergeant jerked her arm violently and pulled her out of the bus. She said that she told the sergeant that if she was to be arrested to get a woman police officer and that if he did not release her she would prosecute him. She said this made him very angry and he twisted her arm behind her back and pushed her to the police vehicle telling her she would have to follow him to the police vehicle or he would shoot her. She said her friend came along and offered to get her licence but nevertheless the sergeant said she must go to the station. She said she felt great pain on her shoulder as if some one scratching hard and asked to be released but the sergeant twisted her arm up her back. At this stage she told the sergeant that if he did not release her she would shout "indecent assault". The appellant said after a further threat to shoot her if she resisted she was pushed by the flanks towards the vehicle into which she was pushed by her twisted arm. She was taken to the police station from where she went to be medically examined. After the medical examination she was brought back to the station which she left at 4.00 p.m. The appellant said that while in the station she fainted twice. The sergeant in cross-examination said he was unaware of this though he learned that the appellant was sent from the police station for medical examination. The appellant denied biting the sergeant on the thumb. The appellant on cross-examination maintained her story. She maintained that the sergeant had said he would have to shoot her and said he was carrying a revolver.

19. The owner of the minibus gave evidence of his leaving Shue Kei Garage in his private car about five minutes after the appellant left in the bus. He said that he saw a police vehicle and his bus side by side and he pulled in in front. He said he descended from his car and saw the police sergeant dragging the appellant out of the bus. He said he asked a policeman who was present what had happened and was told the sergeant had asked the appellant for her driving licence. He said he told the sergeant that she had a licence and to issue a Police Form No.16 or, if required, he would go and get the appellant's licence. He said the sergeant refused this offer and pushed the appellant to the police vehicle holding her right hand behind her back with one hand and his other on her shoulder. He said he heard the sergeant saying "LAM Wai-kuen do not resist or I will shoot you". He said he persuaded the appellant to go to the police station and they all went and, the witness said, he raised bail. The witness was not asked in direct examination, but in cross-examination he said he heard foul language been used by the sergeant but could not remember what it was; it was some abuse. As to the shooting he said the sergeant did not produce a gun but he did carry one. To the court he said the sergeant did not use the appellant's name.

20. The appellant in her evidence said that she fainted twice in the police station and went to the Lady Trench Clinic for examination from which she returned to the police station. No other evidence was given as to her fainting and no witness was called from the clinic but the appellant's evidence was unchallenged. She said that she fainted at home that night in the bath and her husband took her to the Queen Elizabeth Hospital. A doctor from the hospital gave evidence that the appellant was admitted to the hospital at 2.20 a.m. on the 31st October. He said that he found mild bruising and scratch marks on the right forearm and right clavicular region and that she was discharged at 9.00 a.m. on the same day. The injuries he said were mild and were consistent with being held in a strong grasp.

21. As I said earlier Mr. Hampton based his appeal largely on the ground that the conviction of the appellant was unsafe and unsatisfactory by reason of the contradictory nature of the prosecution evidence. The contradiction he maintained had not been dealt with by the learned magistrate in his statement of findings. As an example of this he referred to the evidence of the sergeant when he was asked in cross-examination where exactly the incident took place and he said he could only express it by reference to a lamp post. When asked what lamp post he said:

"Don't remember. It is in my notebook". The following then ensued:

The notebook was produced and referred to.

The notebook was produced and referred to.

22. Although no translation was exhibited I have had the court translator make one and it commences:

"30-10-72. At 11.50 hours at lamp post No. 1087 Kwai Chung Road ......."

Counsel then referred to the evidence of the police constable who described how the sergeant made an entry in his notebook in the vehicle before leaving the scene. He maintained that if both these witnesses were telling the truth then there must have been two notebooks and that the second one was withheld in the court below for the sinister reason that it would have disclosed the name of the appellant and shown that the appellant gave her name as requested. He said that it was most unlikely that anyone would go to all that trouble to support a minor charge but when a complaint had been lodged against the sergeant as there had been then it ceased to be unlikely. He argued that this was a very important contradiction in the evidence of the prosecution which the learned magistrate should have dealt with and explained in his findings.

23. Counsel further argued that it had been clearly established that the appellant had sustained injury in the clavicular region and maintained that this had been sustained when she was being taken to the police vehicle yet the sergeant denied having had any contact with the appellant other than to grasp her by the hand. This too he said was a matter which was brushed aside by the magistrate who made no reference to it whatever.

24. Another point to which counsel referred was the dismissal of the first count. This he pointed out was despite the evidence of the police constable which had gone unchallenged. He argued that the learned magistrate had given no reason for dismissing it, and it must be concluded that he did not believe the evidence of that witness or the sergeant. He maintained that if the learned magistrate did not accept that evidence as being satisfactory then he should have been suspicious of the evidence on the other counts; and if he accepted. the evidence on them he should have given his reasons for distinguishing between it and that given on the careless driving count.

25. Counsel concluded by suggesting that the inconsistencies were of substance and remained unexplained. In the circumstances, he submitted, the conviction should be set aside as being unsafe and unsatisfactory.

26. Counsel for the Crown in reply argued that nothing had turned in the court below on the writing in the notebook because there was nothing in the evidence of the constable who saw the sergeant writing to suggest that he was writing in a notebook. He said reference had been made to the notebook in the court below and clearly the learned magistrate would have taken that evidence into consideration. He would maintain that the fact that the learned magistrate had dismissed on one count and convicted on the other two demonstrated that the magistrate had carefully examined all the facts.

27. In arriving at a conclusion on the charge of obstructing a police officer in the instant case the learned magistrate had to decide was the sergeant acting in due execution of his duty and therefore entitled to arrest the appellant. It is too well established to warrant comment that if she had refused to give her name he was entitled so to do and would have been acting in execution of his duty in doing so.

28. On that point there were strongly conflicting stories. It is most unfortunate that the learned magistrate confined himself to a rather curse, crypt Statement of Findings. The section of the Magistrates Ordinance which makes provision for such a statement says that the magistrate:

"shall prepare a ..... statement of his findings on the facts and other grounds of his decision...".

In this case there was much conflicting evidence as I have said and endeavoured to show by the lengthy references I have made to the evidence of the various witnesses. There was evidence on the count of careless driving which would appear to be overwhelming, yet the learned magistrate did not accept it. One would have expected the learned magistrate to explain in some way why having rejected the prosecution evidence on that count he accepted it on the others. Again, there was medical evidence that the appellant had sustained injury in a way that was irreconcilable with the evidence of the prosecution witnesses. This was a matter that clearly raised the question of the credibility of the prosecution witnesses, but there is nothing whatever in the Statement of Findings to indicate how the learned magistrate resolved this. He does not find for example if the appellant was in fact injured. It may well be that he intended to indicate a finding when he said:

"I was also satisfied the sergeant was acting in the execution of his duty in using no more force than was necessary to effect the arrest when the appellant assaulted him by biting his thumb".

It may be that the magistrate there intended to convey his awareness that the appellant was injured but that it was the result of the sergeant using reasonable but necessary force but this is far from a clear finding. In my opinion the magistrate should have made a categorical finding that the injury was not sustained as the appellant says she sustained it, or found an explanation how she could have sustained it as she alleged without the sergeant being aware of it. As I said earlier the injury was something that went to the credibility of the prosecution witnesses: if the sergeant's evidence was unaffected by this discrepancy it should have been so stated.

29. I do not think, in the circumstances of this case that it was sufficient merely to state:

"After hearing all the evidence I was satisfied that the appellant had refused to give her name and address when required to do so. I accepted the evidence of the sergeant and was satisfied he had used words sufficiently indicating to the appellant that she was under arrest before she was removed to the police vehicle. Although the sergeant did not use the most formal or the happiest of expressions in this respect the situation was clearly heated; I was satisfied he had communicated the fact of the arrest in reasonably appropriate terms in the circumstances and the appellant was warned that she could be forcibly removed as a consequence."

I have earlier traversed at considerable length the evidence given in the court below to demonstrate the divergence between the evidence of the prosecution witnesses and that of the appellant, and also in some instances between the two prosecution witnesses. It is quite clear that in some instances the evidence was untrue. To ascertain where the truth lay was of course the function of the magistrate who tried the case and, as Mr. Hampton said, it would be too much to ask an appellate jurisdiction to do so. Nevertheless, in my opinion the learned magistrate ought, in fulfillment of his statutory duty to have set out in his Statement of Findings in more detail the grounds on which he disbelieved the appellant and was convinced that the prosecution's case was established. More particularly is this so as he did not accept other evidence of the prosecution as establishing the first count.

30. If this were an appeal to the Full Court against conviction on indictment where the ground relled on was that the conviction is unsafe and unsatisfactory the test would be a subjective one: is the court satisfied with the conviction or has it a doubt about it; does the conviction leave a sense of uneasiness as to whether or not an injustice has been done. This is a position which was arisen since the enactment of the s.18 of the Criminal Procedure (Amendment) (No. 2) Ordinance. Prior to that the Full Court would have been slow indeed to interfere with a conviction where a jury or a trial judge had had the opportunity of seeing the witnesses and forming an opinion as to the reliability and credibility of their evidence. But that Ordinance (in England S.2 of the Criminal Appeal Act makes a similar provision) bestows new powers and imposes new obligation on the court. The granting of those powers and the imposition of those obligations means as, Lord Widgery said in R. v. Cooper⁽¹⁾:

"... that in cases of this kind (i.e. considering if a conviction was unsafe and unsatisfactory) the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubts in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

31. There is no provision in the Magistrates Ordinance similar to that of s.83 of the Criminal Procedure Ordinance (which section as it now is was enacted by section 18 of the Criminal Procedure (Amendment) (No. 2) Ordinance) but Section 119 provides that on appeal:

These are very wide powers indeed and in my opinion are sufficiently extensive to enable a judge to consider in a subjective way whether an appeal from a conviction in a magistrate's court is unsafe and unsatisfactory as would the Full Court consider a conviction on indictment.

32. I am far from satisfied that the learned magistrate fully, if at all, directed his mind to the discrepancies and contradiction in the evidence of the prosecution witnesses. Similarly, I am not satisfied that the evidence of the appellant was fully considered and I cannot rid myself of an acute feeling of uneasiness as to the justice of the conviction.

33. In the circumstances I allow the appeal.

Representation:

Mr. Hampton (Gordon Hampton & Winter) for Appellant

Mr. E. Soh, C.C. , for Respondent

(1) (1969) 1 A.E.R. 34