R. v. Cheung Kim Hung

HCMA000120/1997

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 120 OF 1997

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Coram: Hon Gall, J. in Court

Date of hearing: 9 May 1997

Date of judgment: 22 May 1997

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J U D G M E N T

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1. The appellant was convicted on 27^th December 1996 of reckless driving and was fined the sum of $5,000. He now appeals against that conviction.

2. The incident in respect of which this prosecution was brought occurred on 26^th June 1996. It was alleged by the prosecution that the appellant was driving his car through Tate's Cairn Tunnel toward Central and was followed by a car driven by another driver. It was alleged by that other driver that the appellant prevented her from changing lanes and slowed down to prevent her passing him. At one point she said he reversed his car and struck her vehicle. There the two vehicles continued on (said the prosecution) to the Kwun Tong Bypass. At this point the car driven by the other driver was ahead and she alleged that the appellant drove behind her chasing her. Then he overtook her on the left lane and came close to her. At that point she was driving at 80 kph. She then swerved into the middle lane and the appellant's car having overtaken her also swerved to the lane in front of her. She changed lanes again and again he changed. He suddenly braked. She applied her brakes but there was a collision. At this point she said the appellant left his car which was stationary came to her car and took the ignition key from it.

3. Three independent witnesses gave evidence. Two testified that the car driven by the appellant prevented the other car from passing it on the Kwun Tong Bypass and the third testified to the stopping of the other car by the appellant's car. The appellant did not give evidence as was his right. The magistrate drew no adverse conclusion from that fact.

4. There were four grounds of appeal. Firstly, that the magistrate either failed to resolve inconsistencies in the evidence or when he did so, made findings not supported by the evidence. Secondly, that the magistrate wrongly gave weight to the evidence of the three eye witnesses by concluding there was no reason why they would collude and come to court to give false testimony against the appellant. Thirdly, that the magistrate failed to direct himself of the clear record of the appellant and fourthly, that the magistrate failed to direct himself on the two limbs required to make out recklessness as required by in the case of R. v. Lawrence [1981] 1 All ER 974.

5. There were inconsistencies in the evidence of the driver of the 2^nd Vehicle and the three other witnesses. These discrepancies were of a minor nature and were not such as to cause the magistrate concern and were no more than can be reasonably expected where a number of witnesses from different perspectives give evidence about an incident they observed. None of the discrepancies or inconsistencies are significant enough to warrant allowing this appeal. There are times when the magistrate drew conclusions from the evidence where there was no direct evidence to support it. I am satisfied that on examination of each of those incidents that the magistrate was drawing an inference from the circumstances set out in the evidence and that those inferences wre properly drawn and, in any event, none of them were of such moment as to warrant the allowing of the appeal.

6. Mr Wong argues that the learned magistrate said :

"The three eye witnesses including PW1 herself did not know the Appellant. There was no reason why the three eye witnesses would collude and come to court to give false testimony against the Appellant."

7. He cites the case of R. v. Chiu Hung Wong Crim. App. No.161 of 1994 in support of his contention that the magistrate should not have relied upon the independence of the three witnesses in assessing their credibility. The case to which he refers me is one where a deputy judge in summing up to a jury directed them that a police officer would be less likely than other witnesses to lie to them in evidence because to do so would be to risk disciplinary proceedings. That is far from the situation in the case before the magistrate. What the magistrate has done is to take into account the fact that the witnesses were strangers to each other and to the appellant in reaching the conclusion they had not colluded with each other in the evidence which they gave. That is not a suggestion that they are more likely to tell the truth because of a position they hold nor because of the consequences that may flow from lies they told. There is nothing in this point.

8. The third and fourth grounds of appeal related to the failure by the magistrate to direct himself in respect of the previous good character of the appellant and to the test to be applied in determining whether the act of the appellant amounted to reckless driving. As these courts have said on many occasions it is not necessary for a professional magistrate to state in his reasons, on every occasion, every detail of the law. He is presumed to know the law and to have applied it correctly where, on the facts which he found to be true, a proper application of the law will lead to the verdict which he reached. The facts which give rise to this prosecution, as found by the magistrate, were such as to satisfy both limbs of the test in the R. v. Lawrence and his failure to refer to that case and the principles relating to the good character of the appellant do not make this conviction unsafe and unsatisfactory. The appeal against conviction is dismissed.

Representation:

Mr Johnny Chan, C.C., for Crown

Mr Richard Wong, inst'd by M/s Hobson & Ma, for Appellant