HKSAR v. Lau Siu Fai

HCMA349/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.349 OF 2003

(ON APPEAL FROM KCCC 123 OF 2003)

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Coram: Deputy High Court Judge M. Poon in Court

Date of Hearing : 11 December 2003

Date of Decision : 11 December 2003

Date of Handing Down Reasons for Judgment : 24 December 2003

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REASONS  FOR  JUDGMENT

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1.The appellant was convicted after trial of one charge of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap.374. He was fined $4,000 and disqualified from holding or obtaining a driving licence for six months. He appealed his conviction. At the hearing I dismissed the appeal. I now give my reasons.

2.It is a simple case, the facts are straightforward. On the day in question the appellant drove a shuttle bus from Kowloon Station towards Tsim Sha Tsui. The journey ended on Kowloon Park Drive near the junction with Peking Road, where the bus collided into the rear of a stationary private car that stopped at the red lights. The prosecution case was that throughout the journey the appellant drove dangerously, at excessive speed, jumped a red light and engaged in competitive driving with another vehicle which resulted in the collision.

3.The prosecution relied on the evidence of PW1 who was a passenger on board the shuttle bus and who sustained injuries as a result of the collision.

4.The appellant had exercised his rights and chosen not to give evidence, and the Magistrate had properly reminded himself that no adverse inference were to be drawn from that election of his.

5.Four grounds of appeal were advanced. I shall deal with them one by one. The first ground is that the refusal by the Magistrate to grant adjournments as applied constituted material irregularities in the course of the trial.

6.There were a total of two such applications before the actual commencement of trial. The first application came from the prosecution because a Madam Wong, the driver of the stationary vehicle, was unable to attend court to give evidence. The second application, made by the defence, came after the refusal of the first application. This was made on the basis that there was a late disclosure of previous convictions of PW1 and the defence wished to make enquiries of those.

7.Madam Wong had just given birth at the time of the trial and was thus not available to attend court to give evidence. The Magistrate, in refusing the prosecution's application for adjournment, was satisfied that her evidence could be available from another source, namely, from the evidence of PW1.

8.In relation to the grounds that the Magistrate should have acceded to the defence application for an adjournment brought about by the late disclosure of PW1's criminal record, counsel for the appellant relied on a number of cases. I have no doubt that the prosecution is under an obligation to disclose the previous convictions of a prosecution witness. But the complaint goes further. Counsel submitted that the disclosure should be in a timely manner, and that by this late disclosure, preparation of their defence was unduly undermined.

9.The decision whether to grant an adjournment is a matter of discretion for the Magistrate or trial judge. As Lord Atkin put it in the case of Maxwell v. Keun & Others [1928]1 KB 645 at page 653 :

"I quite agree that the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so."

10.Also in the case of Attorney General v. Ip Chong-kwan and Others [1979] HKLR 141 at page 142, the Court of Appeal said this :

"It is well-established that an exercise of discretion is a matter of law which can be challenged on appeal, but equally it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice. ... Justice must be done to the Crown as well as to the defence, although there is no doubt that the court will scrutinize the proceedings with particular care where the defendant may be prejudiced: but justice must be done to both sides."

11.Therefore, whilst a magistrate has a discretion in granting adjournments, the discretion has to be exercised judiciously. In so doing, he has to balance the interest of the defence on the one hand, and the interest of justice on the other. It is all a balancing exercise. At the end of the day, an appeal court will have to decide whether this discretion has been exercised fairly and judiciously and whether such resulted in any prejudice to the appellant which prevented him from having a fair trial. In my view it did not in the present case.

12.It was submitted by counsel for the appellant that had Madam Wong been called there were matters that they wished to elicit from her which could go to discredit the evidence of PW1. In particular, counsel submitted that the defence could have explored with Madam Wong the speed of the appellant's vehicle at the point of the collision and might well have cast doubt on PW1's evidence. I have no doubt that the defence knew full well what Madam Wong would testify about from the contents of her witness statement prior to the trial. I note that at no time during the application for adjournment did those acting for the appellant in the court below refer the Magistrate to any parts of her statement indicating such conflicting evidence. The claim that such a possibility existed was no more than a fishing expedition or conjecture on the part of counsel for the appellant.

13.The prosecution has discharged their duty of disclosure to the defence of the previous conviction of PW1. The Magistrate was alive to the complaint that the disclosure was not a timely one. He accepted this criticism but came down to the conclusion that this was not something which justified an adjournment. Whilst those representing the appellant in the court below failed to persuade the learned Magistrate why the late disclosure justified an adjournment, counsel for the appellant also failed to elaborate what further preparation of the defence was it that had arisen from and necessitated by this piece of information. I agree with the views of the learned Magistrate that previous convictions of a prosecution witness which goes to his credibility, could be and indeed have been fully canvassed by those acting for the appellant in the court below in cross-examination. Cross-examination of a witness's previous conviction with a view to discredit him is subject to a degree of judicial control.

14.In fact, according to section 15 of the Evidence Ordinance, Cap.8;

"A witness in any proceedings may be questioned as to whether he has been convicted of any indictable offence, and on being so questioned, if he either denies or does not admit the fact or refuses to answer, it shall be lawful for the cross-examining or opposite party to prove such conviction, and in such case, and also whenever it may be necessary to prove the trial and conviction or acquittal of any person charged with an indictable offence, a certificate, record or extract of the conviction containing the substance and effect only of the conviction for such offence, ..., shall on proof of the identity of the person, be sufficient evidence of such conviction or acquittal. ..."

15.Having gone through the transcript, this issue never arose. PW1 never denied his previous convictions. He volunteered his previous records when asked. There had been extensive cross-examination on this topic and nowhere during and after the commencement of PW1's testimony did those representing the appellant in the court below manifest any difficulty to carry on with their cross-examination. Whilst counsel for the appellant submitted that PW1 was evasive on this matter, the Magistrate found PW1 to be forthcoming. In his Statement of Findings he found that the cross-examination of this witness' previous conviction was by means of step-by-step non-leading questions. Given the way that the questions were asked, he was satisfied that there was nothing in the point. The Magistrate, having seen and heard the witness, is in the best position to judge this.

16.I was told by the respondent that all the documents relating to those convictions or legal proceedings were destroyed due to the effluxion of time. Therefore, even if an adjournment were granted, no documents other than the formal criminal record of PW1 which they already had at the trial could have been obtained.

17.I do not see how the defence was prejudiced by the refusal of the Magistrate to grant adjournments. His ruling against such cannot be faulted at all. I am sure that this complaint of the appellant on appeal are mere afterthoughts. There is nothing in this ground.

18.The second matter which arose is that it is submitted that the learned Magistrate erred in finding that PW1 was "not trying to embellish or exaggerate" his testimony. In judging matters pertaining to credibility the Magistrate was in a far better position to make the assessment because he saw and heard the witness. The points taken by counsel for the appellant were the very same points taken before the Magistrate, to which he had given careful considerations. He had exercised caution before he relied on PW1's evidence, in light of his previous convictions and former career as a police officer, as well as the fact that he might have an interest to serve given that he had a prospective civil claim. There is nothing which suggests that the assessment of credibility by Magistrate was based on anything other than sound observation and reasoning.

19.I shall only briefly deal with the submission that conducts as such found by the Magistrate did not amount to dangerous driving. Defined under section 37(4) of the Road Traffic Ordinance, Cap.374,

"A person is to be regarded as driving dangerously within the meaning of subsection (1) if -

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous."

20.In the present case, the Magistrate accepted the testimony of PW1 as to the manner of driving of the appellant. According to PW1 he could see that the lights were changing some 30 metres prior to reaching a junction, but the appellant simply took no heed and drove through the red light. It is also PW1's evidence that at various points the appellant accelerated to over the speed limit. Moreover, just prior to the accident, in order to prevent a vehicle traveling on another lane to cut into his lane, the appellant sped up. This was correctly described by the Magistrate to be combative driving. In so doing, the appellant failed to take heed of the traffic conditions in front of him and although he tried to brake hard to avoid a collision, he bumped into the rear of a stationary vehicle which stopped validly at a set of red traffic lights. The Magistrate accepted all these evidence. The prosecution case against the appellant was founded on a whole course of conduct instead of a mere single or isolated incident. Base on those findings of the Magistrate, I have no doubt that applying the objective standard, this is a clear case of dangerous driving. It is an uphill task to argue otherwise. The manner of driving of the appellant could not be described as just a momentary slip of attention on his part. No competent and careful driver would drive in the manner described. In my view, the argument that such were not conducts which were obviously dangerous to a competent and careful driver is a futile one.

21.There is nothing material in this appeal, and so the fourth ground of appeal, namely, that the conviction is unsafe and unsatisfactory, must also fail. There is ample evidence to support the conviction. The Statement of Findings of the Magistrate is impeccable and I confirm the conviction. The appeal is dismissed.

Representation:

Mr Issac Tam, SGC of the Department of Justice, for the Respondent

Mr McGowan James, instructed by Messrs P.C. Woo & Co.,assigned by DLA, for the Appellant