HKSAR v. Hsu Henry

HCMA 447/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 447 OF 2005

(ON APPEAL FROM STS 8251/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 21.6.2005

Date of Judgment: 21.6.2005

Date of Handing down Judgment: 22.6.2005

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J U D G M E N T

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Background

1.The Appellant was convicted after trial of “Careless Driving”, contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374. He appealed against conviction.

2.After hearing submissions I allowed the appeal, quashed the conviction and set aside the sentence. I now give my reasons in writing.

Prosecution case

3.A collision occurred at a roundabout at Che Kung Miu Road. PW1 gave evidence that she has entered lane 1 of the roundabout, intending to do a 270 degree turn to the right. When she was about the pass the exit for Hung Mui Kuk Road the Appellant’s car hit her car. PW1 said her speed at the time was about 20-30 km/h. She agreed in a witness statement she said her speed was 40 km/h. She explained that when she gave the statement it was only an estimate. She further elaborated that she took a taxi later and noted the speed of the taxi was about 20-30 km/h, the same speed she was travelling when the collision occurred. She therefore gave evidence in court that her speed was 20-30 km/h. She denied trying to pass the Appellant’s car on the left.

Defence case

4.The Appellant gave evidence that he entered the roundabout into Lane 2, intending to make a 270-degree turn. When he tried to exit into Hung Mui Kuk Road the other vehicle was suddenly at his side. He had no time to avoid it.

Grounds of appeal

5.In his Notice of Appeal the Appellant wrote, after the standard printed grounds:

“The case was scheduled at 9:30 am but was transferred to court No. 2 due to congestion of cases. As the judge is English-speaking, only statements translated hastily were admitted to the hearing and that is not fair to the trial.

Respondent’s response

6.Ms. Mary Sin, counsel for the respondent, drew my attention to a particular part of the learned magistrate’s Statement of Findings (at page 7 of the Appeal bundle):

“	6.	The appellant spoke good English, and chose to conduct the trial in English. The police notebook was produced, and because of the last minute switch to my court, the appellant’s statement in that notebook had not been translated. I explained to him that if he wished me to take that statement into account, then I would adjourn for a translation, but he asked that the trial proceed, without the translation.
	7.	In any event, the police officer gave evidence that at scene, the appellant gave an explanation of what happened. The Appellant’s explanation at scene is very similar to his evidence in court.”

7.Ms. Sin informed me that, contrary to what the learned magistrate was told, there was in fact a certified English translation of the Appellant’s statement which could have been submitted to the court. The Appellant was therefore erroneously misled into accepting to conduct his defence without the assistance of this piece of evidence and was unable to present his defence in the manner which he would have been legitimately entitled to do.

8.Ms. Sin further submitted that although the learned magistrate had not made an express finding that she had rejected the defence version as being incredible, she must have impliedly done so by accepting and relying on PW1’s evidence. The relevance and significance of having the police notebook entries before the court, Ms. Sin submitted, was to show the extent of consistence of the defence version and to show the defence in court was not an after-thought and should be more credible than one which is raised for the first time in court. The evaluation of the defence case by the learned magistrate therefore might have been affected to some extent had the police notebook been produced, especially in the light of PW1’s inconsistence in the speed she was driving at the time which the Appellant alleged was the cause of the collision.

9.Mr. Sin also pointed out that although the police officer gave oral evidence as to what the Appellant had said at the scene, the accuracy and completeness of the oral testimony could not be checked against the written version in the notebook.

10.Ms. Sin submitted that the erroneous exclusion of evidence which the Appellant was entitled to put before the court for consideration may apparently infringe his fundamental right to a fair trial.

Judgment

11.Ms. Sin has very fairly brought to my attention the irregularity occurred during the trial. It was unfortunate that the prosecution has misinformed the learned magistrate at the time.

12.Having considered the grounds of appeal and Ms. Sin’s submission, and bearing in mind that this is basically a “one-against-one” situation - with PW1’s words against the Appellant’s - I am satisfied that such an irregularity resulted in the Appellant not being able to present his defence in the manner he was entitled to. The learned magistrate, through no fault of hers, had not properly evaluated the defence.  The conviction is therefore neither safe nor satisfactory. For these reasons I allowed the appeal.

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

Appellant HSU Henry in person