HKSAR v. Wong Kwok Cheung

HCMA000357/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 357 OF 1999

(On appeal from SPCC 6944 of 1998)

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Coram: Recorder Ching Y Wong, SC, in Court

Date of hearing: 30 July 1999

Date of judgment: 30 July 1999

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J U D G M E N T

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1. This is my judgment. These short reasons I am giving probably will not do justice to the very helpful submissions by both Mr Delaney and Miss HO. I find Mr Delaney's submission very bold in respect of the issue, firstly, whether there was in fact an accident at the bus terminus, and secondly, if there was, whether the appellant was in fact the driver of the vehicle, the police vehicle concerned. It raises the issue of a conspiracy on the part of all the prosecution witnesses to concoct a story and all for what purpose?

2. I cannot accept that on the evidence before the learned magistrate that he was wrong in his finding that in fact there was this accident at the bus terminus, and furthermore, that PW1 was reliable in respect of her evidence that the driver of the police vehicle was the appellant. In respect of the damage done to the police vehicle at the police station, the evidence can only be described as scant. However, that fact is not in issue because the appellant's case was not that there was no such accident, nor that there was no such damage at all. The real question of the whole trial was whether the appellant had deliberately caused the damage to the police vehicle. The relevant part of the learned magistrate's finding in respect of this appears at page 278 of the transcript, where he said,

"I was satisfied that vehicle AM8003 did hit a wall in the Wong Tai Sin Police Station car park when driven by the appellant. There were no witnesses to the accident in the police car park on 7 February. I was satisfied, taking into account those circumstances plus the circumstances that the damage caused to the police vehicle was at the very same area as the day before, namely the offside rear corner, that inference to be drawn was irresistible and inescapable but the damage done to the police vehicle whilst the appellant was driving it on 7 February was done deliberately and was not accidental.

The appellant's purpose was to provide an explanation for the damage to the police vehicle which would not involve disclosure of the fact that he had used the vehicle for a private purpose the day before."

3. So the basis of the inference that the damage was caused deliberately came from what had happened the day before and because of the damage to the vehicle at the same spot. Is that the only reasonable inference? I am of the opinion that it is not. It is very suspicious indeed, and I find that the learned magistrate's finding of the appellant's purpose was, with respect, an inference which was not the only reasonable inference. I say this because unless what had happened the day before at the bus terminus can be shown to be connected with the damage caused at the police station, this inference is but one of the reasonable inferences that may be drawn. In other words, where is the evidence to support the proposition that the damage done at the police station was not accidental? It is only when that scenario may be excluded and excluded by evidence that one would then be left with the inference that the damage was done deliberately.

4. In the circumstances, with respect, I am of the view that the learned magistrate had erred in finding that the only reasonable inference was that the damage at the police station was done deliberately by the appellant.

5. The non-reporting of the accident the day before may certainly be looked upon as supporting the learned magistrate's view, but the non-reporting may also not be connected at all with the damage to the vehicle at the police station. I have said it is very suspicious but suspicions are never enough to ground any conviction, and for these reasons I allow the appeal. I quash the conviction, I set aside the sentence of three months, and the orders in respect of costs and compensation.

Representation:

Miss Winnie HO, Senior Government Counsel, for HKSAR

Mr Micheal A Delaney, instructed by Sadig Solicitors, for Appellant