Lai Fat v. The Queen

CACC001000/1976

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1000 OF 1976

-----------------

-----------------

Coram : Li, J.

Date of Judgment : 26th October, 1976

-----------------

JUDGMENT

-----------------

1. The appellant was convicted before a magistrate of two offences: one of driving a private car for the carriage of passengers for hire or reward. The particulars of offence are that he, on the 9th day of August at Kwun Tong, Kowloon, in this Colony, did drive a motor vehicle, namely, a private car registration number BC1353, on a road, for the carriage of passengers for hire or reward. The other offence is that of driving a motor vehicle without third party insurance. The particulars of offence are that he, on the 9th day of August at Kwun Tong, Kowloon, in this Colony, did drive a motor vehicle, namely, private car registration number BC1353, on a road, when there was not in force in relation to the user of the said vehicle such a policy of insurance or other security against third party risks as complied with the requirements of the Ordinance.

2. To start with, these two charges appear to me to be a complete nullity because there was no specification of a year. It could have been the year 1900; it could have been the year 2000. However, learned counsel for the appellant persuades me that as the matter could remedied by the magistrate then I, on appeal, have the similar power. This is desirable particularly as the parties directed their minds on that particular day and there was no injustice caused and that the proceedings in the court below should be adopted and I should continue hearing the appeal as if there had not been an abortive trial. I accede to this request. However, I must observe that persons who prefer charges or lay information, should be more careful in drafting their charges. This may well be the case that the parties are not prejudiced. But there can be cases when a defendant could be greatly prejudiced by such a slap-dash manner in preferring charges.

3. I now come to the appeal. The facts of the case are simple. The prosecution's evidence was that on the 9th day of August of this year, a sergeant and two police constables observed the appellant taking passengers in a private car. The two constables were then detailed as a decoy and boarded the appellant's car on the appellant's invitation. They took the appellant's car to a certain place called the Yue Man Square where one of the constables gave the appellant $3. The appellant was not arrested there and then. Nor was he told that he would be summoned. The constables then left the appellant. Five days later the appellant was seen in the same vehicle by an inspector of the police. He was asked to go into the police station. In one of the offices in the police station was the sergeant and the constable who boarded the taxi. Both of them identified the appellant to be the person who drove the car on the 9th of August which took the two constables to Yue Man Square. That is the evidence in support of the first charge.

4. The evidence in support of the second charge relies only on the insurance policy. Obviously, if it was a private car it was not protected in any way when it was used for hire. In any event, passengers in that car would not be protected. Hence the second charge.

5. The defence evidence was one of an alibi. The appellant said that the 9th of August was some form of remembrance day, something like All Souls' Day. That was the 14th day of the 7th Moon. He had to observe certain ceremony and he went to Tsuen Wan to his relative and was expected to stay there. He could not possibly be the person who drove that car. He also put up another alibi by saying that at the material time the car was in a garage under repair and was not taken out until the 11th of August, 1976. He intended to call three witnesses to corroborate his evidence. Unfortunately, he shared the mentality of a huge section of the members of the public in this city: that traffic offences were a trivial matter. They are ignorant of legal procedure. They feel that it is the duty of everybody to help and advise them. When they come to court they are thoroughly unprepared. When the appellant had finished giving his evidence, he told the learned magistrate that he had witnesses to call but he needed time. The learned magistrate observed that the appellant first appeared in court on the 21st of August and the trial did not take place until the 10th of September and that he had a long time to procure his witnesses to go to court. The appellant's explanation was reflected in these words: "I need time to get witnesses. They live in Tsuen Wan and the garage workers are all busy today". All these are very common in this colony. People are not public spirited. Unless they get a subpoena from the court to compel them to attend, in nine cases out of ten they will never turn up. Some of them, even can hide themselves away and shy away from court after receiving a subpoena. What was most unfortunate was that the appellant said: "This is a trivial matter. The statement I have tendered by the garage is enough to show my car was off the road then". Well that was his line of approach. Unfortunately for him the magistrate did not adopt that approach at all and he went on to convict the appellant.

6. The appellant now appeals against his conviction on two grounds. The first is that the learned magistrate was wrong in not permitting the appellant the opportunity of adducing further evidence which thereby effectively excluded "alibi" evidence. The second ground is that the convictions should be set aside on the ground that in all the circumstances of the case they are unsafe and unsatisfactory. I will deal with the second ground first.

7. It is appreciated that the whole case depended on identification and identification alone. It is true that the constable and the sergeant all identified the appellant to be the driver on the 9th of August. However, the identification was five days afterwards i.e. on the 14th of August. The circumstances in which the identification being conducted was such that the quality of such identification could only be described as poor. There was the inspector who brought in a single person into the offices in a police station. He asked the constable and the sergeant concerned in these words, "Do you recognize him?" One can well imagine what sort of an answer the inspector could expect and what sort of an identification that could be. It was never in the form of an identification parade. There was no other person except the appellant who was brought in by the inspector. Time and again one observes identification in court when a witness is asked whether he can identify the accused. It is right enough that the witness will point at the person sitting in the dock. Obviously, it is an easy way of identification. The learned magistrate seemed to be fairly impressed by the method that pak Pai drivers were caught and the method adopted by the police in these days. I, for one, with due respect, would not share his enthusiasm and his commendation to this method. If it was alleged that the appellant did on the 9th of August there was more than ample evidence after the journey to Yue Mau Square to arrest the appellant and charge him. There would be no question of any identity whatsoever. As it was, the police must wait. There must be a week to a fortnight's observation. After the period of observation then they lay an ambush somewhere or put a road block somewhere. Then they stop the driver even if the vehicle is empty. They bring the driver into the police station. Then they charge him of an offence that was alleged to have been committed some days before.

8. Incidentally, this is not the first case that this method come to notice. Some months ago a constable was involved in an indictment for manslaughter because such a method to catch Pak Pai driver was adopted. There a person was observed to have taken passengers for hire in a private car some days before. But he was never stopped there and then, he was observed for a week or a few days. His car number was taken down. Several days later a road block was set up. The driver was told to stop his car. He refused to obey the traffic signal. As a result a police officer was sent to chase him on a motorcycle both the driver and the police constable drove at high speed endangering the lives of pedestrians. The driver deliberately tried several times to ramp the police motorcycle. Eventually the police caught up with him. There was evidence that he was bending down to wield an iron bar to hit the police constable. The driver was shot dead. As a result the police constable was put on indictment for manslaughter. In that case the chase, the killing would not be necessary if the clumsy method of catching Pak Pai drivers was never used. The earlier the practice was dropped the better.

9. So much for the identification and so much for the so-called clever method of detection of pak pai drivers.

10. I now come to the refusal of the learned magistrate to hear further evidence at the trial. It is true that the learned magistrate could have adopted the approach as he did. However, knowing the ignorance of lay people in matter of legal procedure if the learned magistrate had a bit more patience with the appellant, he could have given the appellant at least one more chance. The appellant said that he wanted to get witnesses, and that he needed time to do so and that the witnesses were hesitant and reluctant and busy at work. Indeed, it is not for the court to wait for reluctant witnesses to come forward. But in Hong Kong, there are other cases to occupy the learned magistrate for the day so that an adjournment will not be wasting time. As learned counsel for the appellant points out, nobody was in custody. The prosecution has finished and closed its case. No embarrassment could be caused to the prosecution or to any other person except the appellant himself who would have to turn up in court for another occasion with his witnesses. The learned magistrate could have told the appellant that an adjournment would be granted and that a subpoena might be necessary and even caused a subpoena to be issued to assist the appellant in the interest of justice as it was no witness could be called for the defence in corroboration. Had witnesses been called in corroboration, for the defence, of the appellant's evidence, the case might or might not have been decided in a different way.

11. However, acting in this spirit as well as the principle laid down in the case of SHUM Yan-kit v. R.⁽¹⁾ page 347 and the outline of the Chief Justice Hogan, I have no hesitation to follow, with respect, such a decision. It is not the question of having a new trial or applying any provision of the Criminal Procedure Ordinance. Having regard to the circumstances, I come to the conclusion that it is unsafe to allow the conviction to stand. Accordingly, the conviction of both offences are quashed and the sentences are set aside.

Representation:

(1) (1957) H.K.L.R. 347