The Queen v. Lam Man Che

HCMA001084/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1084 OF 1995

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Coram : Hon Duffy J. in Court

Date of hearing : 9 February 1996

Date of handing down judgment : 16 February 1996

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J U D G M E N T

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1. This was an appeal against the conviction of an Appellant taxi-driver for without reasonable excuse not driving to a destination by the most direct practicable route. The witness for the Crown in this case was a news reporter, who, at the Airport on 13th May 1995 about 4:40 p.m., hired a taxi, and told the driver she wanted to go to the to Sing Tao Building at Kowloon Bay. She told him to take the route past the Airport Cargo Depot. He said there was a traffic jam there, and she asked him to take a quick route. The Appellant took a round-about route. The Appellant told the Court that the route suggested by the witness was congested because a coach had broken down there.

2. At the end of the journey there was a dispute about the amount of extra fare that should be paid for a piece of luggage.

3. In his Statement of Findings the learned Magistrate said this :

"I had watched the Appellant giving evidence and I had no doubt whatsoever that he was very far from being honest. He was hesitant and evasive, especially when asked about the coach, it's driver, colour and registration number."

The learned Magistrate is there accusing the Appellant of failing to remember the colour and registration number of the coach, which had been the cause of the traffic jam, which had led the Appellant to take the witness by a circuitous route. I did not regard it as reasonable for the learned Magistrate to expect the Appellant to remember the colour and registration number of the coach. As that was a matter he considered when dealing with the Appellant's credibility it was an important error.

4. He later said :

"He would have the court believe that almost one month after the incident he could still recall the route had had travelled at the material time. I did not find his explanation the least convincing. He alleged that the complaint arose out of PW1's dissatisfaction with her being additionally charged for the piece of luggage. However, that was never put to PW1."

This again was really quite unfair to the Appellant, as remembering the route would not have been difficult in view of his claim that the witness threatened to report him for not driving her by the direct route, if he charged her extra for the luggage. Again it was a matter that went to his credibility, and again I felt the learned Magistrate was in error.

5. As Mr McCoy who appeared in the appeal advised me, this was an unusual Appellant, in that he was a taxi-driver without any previous convictions. This factor had not been before the court. Had that been before the court, I have no doubt that the learned Magistrate might have taken a different view of this case. As it was, the learned Magistrate seemed to accept inter alia from a police officer that 4:30 on a Saturday afternoon is not a time of serious traffic congestion. Anyone who has lived in Hong Kong for any length of time will know that on Saturday afternoons, particularly around 4 to 5 O'clock, there is usually very serious congestion at all points. The airport is particularly busy on a Saturday afternoon. Once Again I saw this as a fact wrongly determined.

6. What is the most practicable route in all of these circumstances is difficult to determine. The longest route might well take the shortest time. If the witness asked the Appellant to go by a quick route then it may be that the round_about route was the quickest way to go. In all of the circumstance and for the reasons I have already given, I did not feel it safe to allow this conviction to stand and the appeal was allowed.

Representation:

Mr Wesley W.C. Wong, S.C.C., for Crown

Mr G. McCoy (Tang Chan & Wong), for Appellant

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