HKSAR v. Chan Ming Keung

HCMA898/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.898 OF 2004

(ON APPEAL FROM NKS 7320 OF 2004)

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BETWEEN

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Before : Hon Tong J in Court

Dates of Hearing : 14 and 25 October 2004

Date of Judgment : 25 October 2004

Date of Reasons for Judgment : 2 November 2004

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REASONS  FOR  JUDGMENT

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1.The appellant, Chan Ming Keung, (the defendant) was summonsed for the offence of careless driving.  He denied the summons and was convicted after trial.  He was fined $3,000.  He sought to appeal against the conviction.

2.The prosecution case was clearly summarized by the trial magistrate Mr Mierczak.  What was alleged to have taken place was that on 6 February 2004, PW1, a police officer was making observation of the traffic near the junction of Nathan Road and Argyle Street at about 1:00 a.m.  He then saw the appellant driving his taxi KJ1883 on the first lane in Argyle Street westbound.  At the junction of Nathan Road, the defendant turned left into the second lane of Nathan Road southbound.  When it made the turn, the traffic light of the pedestrian crossing was showing green and there were 10 odd pedestrians crossing the road at the time.  They had to scatter in order to avoid being hit by the defendant’s taxi.  The officer observed that the nearest distance between one of the pedestrians and the defendant’s taxi was about half a metre.  The defendant kept on travelling ahead.  The witness intercepted the defendant subsequently and pointed out the offending act.  The defendant responded by saying, inter alia, that he was mistaken about the traffic light.  The witness added that the taxi’s speed, when driving through the crossing, had been about 20 kph.  It appeared that the officer had drawn a sketch depicting the location and the movement of the taxi.  That was produced as P-1. 

3.As to the defence case, the appellant had elected to give evidence.  He stated that he was the driver of the taxi KJ 1883 at the time and place.  He was in Argyle Street approaching the intersection.  He was then in the first lane.  The traffic light turned green for traveling straight ahead.  He misread the signal and made a turn, but he did stop at the yellow box as he had seen the pedestrians.  He had looked at the traffic light opposite and saw PW1 pointing at him.  The appellant waited till the light turned red and then went ahead.  PW1 had chased after him on his motorbike, stopped him in Nelson Street and related the incident to him.  The appellant made the reply that he mistook the traffic light but had stopped at the yellow box.  He said he had not crossed onto the pedestrian crossing.  In the cross-examination, the appellant stated that he had stopped on the yellow box for 10 – 20 seconds; the pedestrians were crossing in front of him while the green man was showing, and they had never scattered as he had stopped on the yellow box before the crossing.

4.Having heard and considered the evidence, the magistrate concluded that he would reject the defendant’s testimony.  He did not believe the defendant’s account about making a mistake of the light and that he had stopped on the yellow box before the pedestrian crossing for 10 to 20 seconds.  The magistrate found that the police officer was a truthful and credible witness.  He found that the officer was at a short distance away and he had an unobstructed view of the incident.  The magistrate accepted that the pedestrians had to scatter in order to avoid the defendant’s taxi.

5.The defendant was unrepresented at the appeal hearing.  Against the conviction, he submitted that the sketch showed the presence of a lot of pedestrians and in that case his taxi could not have rushed through as the prosecution alleged.  He stated that he did stop on the yellow box for about 10 odd to 20 seconds.  The officer was actually not so close at the time.  It was because he had stopped to wait for the light to change so the officer could catch up and stopped him so soon.  There was in fact a team of police officers working there and the officer could have called his colleague to testify.  Finally, the defendant added that the magistrate who had presiding over the case on the plea day acted as the prosecutor at the trial.

6.The last complaint, if true, would seem to be an irregularity of the trial procedure, but whether it was fatal to the conviction would be a different matter.  Still, I had to investigate first.  Hence I adjourned the matter so that the respondent could find out the details and at the same I asked for the record of the lower court in order to confirm.  The record showed that Ms Grace Chan was the presiding magistrate on the plea day and Miss May Lau was the prosecutor.  Then at the trial, the magistrate was Mr Mierczak and the prosecutor was Miss Ip.  The respondent came back with the same result.

7.On the resumed hearing, the results of the investigation were put to the defendant, and it showed that the previous presiding magistrate had not become the prosecutor in the trial.  The defendant then explained that a lady had put questions to him about the case, so he thought that she was the prosecutor, he also recognised her to be the magistrate when he first appeared in court.  The defendant said further that the magistrate in Court 1 (the Plea Court) had told him that it was impossible for him to come to a halt in the yellow box for 10 odd seconds.

8.Obviously the defendant had been confused about the identities of the magistrate and the prosecutor involved.  In relation to his other grounds, as I had explained to him in court, an appeal based on criticisms of the factual findings made by the magistrate is rarely successful.  The magistrate had seen and heard the witnesses, it was his role and duty to decide on the facts of the case based on the evidence presented before him.  This is a so-called one against one case and such cases are not always easy to decide.  But here, the magistrate had accepted the testimony of the officer and that clearly constituted a case of careless driving against the defendant.  I am not in a position to substitute my view of the facts in place of the magistrate’s findings.  I could find no ground to say that the magistrate was wrong in coming to the conclusions as he did.  The appeal must be dismissed.

9.The respondent had asked for costs in view of the adjournment.  The defendant said he had no money and would rather go to jail.  He said that as he was framed by the police, he could not return to his normal taxi driving because of the anxiety, so he had no income recently.  In a way, the adjournment was indeed due to the unfounded allegation made by the defendant.  But he could have made a wrong identification.  Although I did not believe that the defendant could not return to taxi driving to earn his living and therefore had absolutely no income, I would not order costs against him for the unsuccessful appeal.

Ms Priscilia Lam, GC of DPP, for the Respondent

Appellant in person