HKSAR v. Yip Chak Sang

HCMA 244/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 244 OF 2005

(ON APPEAL FROM KTCC 7743/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 3.6.2005

Date of Judgment: 14.6.2005

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J U D G M E N T

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Background

1.The Appellant was charged with an offence of “Careless Driving”, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374 (1^st charge) and an offence of “Driving a motor vehicle with alcohol concentration in breath exceeding the prescribed limit”, contrary to section 39A(1) of the said Road Traffic Ordinance. He pleaded not guilty and was convicted after trial of both offences. He appealed against the convictions.

Prosecution Case

2.The Prosecution case was that at the material time a taxi driver (PW1) double-parked his rented taxi alongside the Appellant’s light goods vehicle (LGV) at Fa Yuen Street and went to have a meal at a nearby restaurant, having left a note with the name of the restaurant on the windscreen of his taxi. Over an hour later he was approached by staff of the restaurant and he went out to reverse his taxi. He saw the Appellant sitting in the driver’s seat of the LGV and the engine was running.

3.Just as PW1 opened the driver’s door of the taxi the LGV suddenly moved out and the front wheel bumped and pressed against the door which he has opened, causing damage to the taxi.  PW1 knocked on the window of the LGV and the Appellant reversed slightly. By the time PW1 walked over intending to tell the Appellant that the taxi door was damaged, the Appellant had alighted and walked off. PW1 waited a short while and then called the police. 

4.A police constable (PW2) arrived shortly. A short while later the Appellant returned, drinking from a bottle of water. PW1 pointed the Appellant out to the police. PW2 conducted a screening breath test on the Appellant. It was an admitted fact that the Appellant had alcohol concentration in his breath in excess of the prescribed limit.

The Defence Case

5.The Appellant testified he was a self-employed driver and the LGV belonged to him. He met up with a neighbour (DW2) for a meal. After the meal they both went to a pub at Fa Yuen Street for drinks and he parked his LGV in that street. DW2 suffered from kidney disease so could not drink alcohol. The Appellant made arrangement with DW2, who has a driver’s licence which covered light good vehicles, to drive him home after they finished their entertainment. DW2 wanted to take medication and water was requested from the waiter of the pub. However, only tap water was offered and the Appellant then proposed to get water he kept in the LGV for DW2.

6.Upon arrival at his LGV he found a taxi next to his vehicle. He opened the passenger side door to get to the glove compartment. He noticed that the bottle of water was empty. At this time PW1 called out to him, claiming he had bumped into the taxi. The Applicant found the door of the LGV was in contact with the body of the taxi. He apologized to PW1 but PW1 claimed the taxi door was damaged and demanded compensation. The Appellant could see the damage but he knew he did not cause it so he refused to pay. PW1 said to him “you were driving off and bumped into my vehicle. If you do not compensate me, I will report to the police”. The Appellant ignored PW1 and went to buy a bottle of water from a shop.

7.The Appellant went back to the pub and gave the water to DW2. He related to DW2 what had happened and the latter suggested that the Appellant should note down the registration number of the taxi in case the taxi driver tampered with the LGV. The Appellant thus left the pub, bringing the bottle of water with him. When he arrived at the LGV he saw the police there and PW1 pointed him out, saying, “It’s him. He bumped into my vehicle”. The Appellant co-operated with the police when he was asked to submit to a screening breath test.

Grounds of appeal

8.Although Mr. Christopher Grounds, counsel for the Appellant, submitted a number of grounds, in essence, the complaint was that the learned Magistrate failed to evaluate the evidence properly and failed to consider material matters.

9.Mr. Grounds drew my attention to various aspects of the case and submitted that the learned Magistrate has failed to properly evaluate or consider these matters. Mr. Grounds also tried to demonstrate how the Appellant’s version of the event was at least as inherent probable as that stated by PW1, if not more so. I do not think it necessary to reiterate all the matters raised.

10.The main thrust of the submission, as I see it, is the basis upon which the learned Magistrate found the Appellant’s version (as to the reason why he has gone to the LGV) being incredible is not a sound one.

Statement of Findings

11.In a very detailed Statement of Findings, the learned Magistrate set out the evidence of the various witnesses. He then adopted the oral reasons he gave at the end of the trial and added an elaboration upon his reason for rejecting the Appellant’s testimony.

12.Basically, as far as the Appellant was concerned, what the learned Magistrate said in his oral reason was that he did not find the ‘essence’ of the Appellant’s testimony believable. He did not believe the reason why the Appellant went to the LGV was to get water so that DW2 could take his medication. The learned magistrate did not believe the Appellant’s evidence regarding PW1’s alleged behaviour toward the Appellant.

13.The ‘elaboration’ in the Statement of Findings are as follows:

“I wish to elaborate upon my reasons for rejecting the Appellant’s testimony. It did not strike me as credible that the Appellant would leave the bar looking for water for DW2. He was inside premises where liquid refreshment was plentiful, including tap water, which was offered by a waiter. I was sure this story was contrived by the Appellant and DW2 to put forward an explanation for his presence at his vehicle consistent with the Appellant’s claim or not having driven the vehicle.”

Judgment

14.The main issue before the learned Magistrate was whether the Appellant was indeed in the driver’s seat and drove the LGV in the manner described in PW1, causing damage to the taxi door. When one analyses the evidence of both PW1 and the Appellant, it does appear rather unusual for someone in the Appellant’s position, if PW1’s version were to be accepted, to have attempted to drive out while the taxi driver was opening the driver’s door and had not even got into the taxi. On the other hand, it is not inherently improbable for a driver to do just so. One could cite a number of reasons, for instance, the driver was impatient at the time; or suffering a momentary lapse of attention or concentration; or under the influence of alcohol, or all of the above. The list can go on.

15.In coming to his findings that the Appellant’s testimony is not to be believed, has the learned Magistrate taken into account and considered the material matters?

16.I am indeed troubled by the ‘elaboration’ given by the learned Magistrate. That elaboration was one of the reasons why the learned Magistrate rejected the Appellant’s testimony. The learned Magistrate said it did not strike him as credible that the Appellant would leave the bar looking for water for DW2, and that the Appellant was inside premises where liquid refreshment was plentiful, including tap water, which was offered by a waiter.

17.That liquid refreshment was plentiful inside a pub is beyond doubt. However, one has to pay for such liquid refreshment. It is not uncommon, in a pub in Hong Kong, when a customer asks for water, he/she is given the choice of bottled water (which he/she has to pay for) or tap water (which is free).

18.Since the learned Magistrate accepted DW2 suffered from kidney trouble and that DW2 was with the Appellant that night, it is not unreasonable or inherently improbable for DW2 to have wanted to take medication and requested water in the presence of the Appellant. If tap water had indeed been offered by the waiter, again it is not unreasonable or inherently improbable for DW2 to refuse such an offer. Since it is not uncommon for motorists to keep bottled water inside their vehicles, particularly when motorists are frequently given bottled water at petrol stations after re-fuelling, the Appellant’s offer to go get bottled water from his LGV is not an incredible one.

19.The learned Magistrate is of course entitled to accept or reject evidence he has heard. However, the ‘elaboration’ given by the learned Magistrate shows that his reasoning was not a sound one. He has failed to properly consider or evaluate the evidence of the Appellant.

20.Although the Appellant’s evidence was to a certain extent supported by DW2, this is still essentially a ‘one-on-one’ situation, with PW1’s words against the Appellant. Having considered the evidence before the learned Magistrate, I have to say that I do not find the Appellant’s version inherently improbable. As the learned Magistrate has failed to properly evaluate and consider the Appellant’s evidence, the learned Magistrate’s acceptance of PW1’s evidence and his findings that the Appellant drove the LGV in the matter described is not a safe or satisfactory one. For these reasons I allow the appeal and quash the convictions.

Ms Mary SIN Pui Ha, Senior Assistant Director of Public Prosecution of the Department of Justice for the Respondent

Mr. Christopher GROUNDS, instructed by M/s Ricky S.P. Ng & Co for the Appellant