HKSAR v. Ling Wan-shun

HCMA000373/1997

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.373 OF 1997

(On Appeal from STC 179 of 1997)

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Coram: Hon Yeung J in Court

Date of hearing: 9 July 1997

Date of judgment: 9 July 1997

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JUDGMENT

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1. The Appellant, Mr LING Wan-shun, was convicted after trial on the charge of reckless driving and a charge of speeding. He now appeals against such convictions.

2. The facts of this case are rather simple. The Appellant was first seen driving a private car at high speed along the Tate's Cairn Highway by a traffic police officer on motorcycle. He was chased by this police officer on the motorcycle. According to the speedomoter of the police motorcycle, a speed of 140 kilometres an hour was recorded when the speed limit along that stretch of the road was only 88 kilometres an hour.

3. The Appellant continued to travel at high speeds overtaking other vehicles, changing lanes at great danger to other vehicles as well as to himself. It was only after a significant period of chase that the Appellant was intercepted. There could be no doubt that the manner of the driving by the Appellant, according to the police officer, constituted the two offences in question.

4. In cross-examination it was put to the police officer that his evidence was exaggerated and his description of the distance and the speed was inaccurate. On the other hand the Appellant elected not to give evidence, not to call any witnesses to give evidence on his behalf.

5. The learned Magistrate accepted the evidence of the police constable. On the evidence before the learned Magistrate, what he did was not surprising at all. The reasoning of the learned Magistrate could not be faulted. Indeed, in support of the present application the only point raised was the suggestion that the Appellant was deprived of the chance of calling a witness who was present at some stage of the chase.

6. It appears that in the course of the chase, in fact, in the later part of the chase, the Appellant suddenly cut into the lane of another vehicle driven by Mr CHAN Kwok-hing. Then the two cars engaged in some sort of chasing - chasing one another, and the Appellant and Mr CHAN in fact tried to cut into the lane of one another, which, according to the police officer, also supported an allegation of careless driving against Mr CHAN Kwok-hing. Indeed the evidence transpired that as a result of this episode Mr CHAN Kwok-hing was also summonsed for the offence of careless driving.

7. The suggestion was that by charging Mr CHAN, he became a Defendant and that the two cases were not consolidated and not heard together, the appellant was thus deprived of the chance to call Mr CHAN as a witness and thereby resulting in an unfair trial.

8. I have listened to the argument advanced by Mr TSE on behalf of the Appellant. I do not accept such a suggestion. Whether Mr CHAN was charged with an offence or otherwise, the Appellant was still entitled to call him as a witness, if he so wished. It was suggested by way of an affirmation that the Appellant had tried to secure the attendance of Mr CHAN to give evidence on his behalf, but such attempt was unsuccessful because Mr CHAN showed reluctance. At the material time he was either being investigated or being charged with an offence arising out of the incident. Despite his reluctance, the Appellant was still entitled to compel him to testify for him, if he so wished. One could not proceed on the assumption that just because Mr CHAN appeared to be a reluctant witness that he would not be a witness of truth when he attended court to give evidence.

9. It was never brought to the attention of the Trial Magistrate of any indication that the Appellant wished to call Mr CHAN to give evidence on his behalf. As I said, there was never any indication at the trial that the Applicant wished to call Mr CHAN; the point of him not being available was never made. Indeed, the record of the proceedings clearly indicated that the Appellant was happy to have the proceeding against him proceeded without the presence of Mr CHAN.

10. In any event on the background of this case, I cannot see how Mr CHAN's evidence could be of any assistance to the Appellant. Indeed, it was never suggested what Mr CHAN's evidence would be and how his evidence could assist the Appellant. This is particularly so when the Appellant himself chose not to give evidence, not to call any evidence on his behalf.

11. On the entire background of this case, I am satisfied that there was no valid ground in support of the argument that the Appellant had been prejudiced, or that he had not received a fair trial. The only point raised in this appeal is a simple one; a point that I do not agree. The appeal is therefore dismissed.

Representation:

Mr Joseph W.Y. TSE, instructed by S.H. Chan & Co., for Appellant

Ms Evena CHAN, Senior Government Counsel, for Respondent