HKSAR v. Yip Ping Cheuk

HCMA 1096/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1096 OF 2004

(ON APPEAL FROM ESS 22443/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 9 December 2004

Date of Judgment: 9 December 2004

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J U D G M E N T

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1.The Appellant was convicted after trial on one charge of careless driving.  He now appeals against conviction.

2.The only prosecution witness called at trial was a police officer (PW1) who was on motorcycle patrol.  He was in Chater Road when he saw the Appellant’s taxi on the carriageway travelling at about 20-25 Km/h.  Suddenly, the Appellant’s taxi cut in front of another taxi which was waiting in line at a taxi stand.  That action by the Appellant was made without any warning.  The taxi which was waiting in line was HC1700 and the driver had to sound his horn and brake abruptly.

3.The Appellant elected to give evidence.  He said that at the time when he cut into the line of waiting taxi there was plenty of space between himself and the taxi HC1600.  He saw the driver of HC1600 was reading a newspaper and was not moving forward and that he was only driving at a speed of about 15 Km/h. 

4.The learned Magistrate after hearing both witnesses, disbelieved the Appellant and concluded that there was nothing in the defence evidence that caused him to doubt the credibility of PW1.  The learned Magistrate found as a fact that PW1 was a truthful witness.  Therefore on the basis of PW1’s evidence he found that the case was proved.

5.The Appellant in his appeal, again recounted the fact that he had plenty of room to cut in front of HC1600, and that PW1 was lying and he was not guilty of careless driving.

6.The Appellant had also intended to introduce additional evidence by way of a letter written to the court in which he tried to give more evidence about this case.

7.I had informed the Appellant that this court would not consider new evidence.  This court is not retrying the case and I only look at the facts which were before the learned Magistrate to consider if the Magistrate was wrong in convicting the Appellant.  The Magistrate did not believe the Appellant’s evidence.  He was entitled to do so.  The Court of Appeal had said on many occasions that the learned Magistrate had an opportunity to see the witnesses giving evidence so he is the best person to decide what the facts are in a case, and it is rare, indeed, for a Court on appeal to disturb the findings of fact by a learned Magistrate.  I have read the learned Magistrate’s Statement of Findings, and his oral reasons for verdict.  It is clear the learned Magistrate was entitled to come to the conclusion he did.  I see no merit in the grounds of appeal and so the appeal is dismissed.

Ms Peggy Lo, GC, of Department of Justice, for Respondent

The Appellant, in person