HKSAR v. Yiu Wing Wo

HCMA604/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 604 OF 2005

(ON APPEAL FROM TMCC 1043 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 8 November 2005

Date of Judgment : 8 November 2005

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J U D G M E N T

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1.The appellant was convicted in Tuen Mun Magistracy on 27 May 2005 of an offence of knowingly misleading a police officer, contrary to section 64(b) of the Police Force Ordinance, Cap. 232.  He appeals against that conviction.

2.The facts of the case as found by the magistrate were that the appellant, a taxi driver, had been involved in a minor collision between his taxi and another taxi.  The police were called to the scene of the collision.  When he was spoken to by a police officer, the appellant falsely claimed that a third vehicle had struck his taxi in the rear causing his vehicle to bounce forward and collide with the rear of the other taxi.  Because of the allegation the accident had involved three vehicles, police procedure required a chief traffic officer to be called to the scene.  That was done.

3.The appellant, who was unrepresented before me, advanced a general ground of appeal to the effect that there was insufficient evidence to ground his conviction and a specific ground that the magistrate failed to take into account photographs the appellant produced during the trial which he claimed showed damage to his taxi caused by the third vehicle.

4.The two police officers who attended the scene and the driver of the other taxi gave evidence, as did the appellant.  The magistrate rejected the appellant’s evidence.  That decision followed inexorably upon the magistrate’s finding that the appellant had given quite contradictory versions of matters to the officers at the scene and in his evidence before the magistrate.

5.He said this about the appellant and his evidence :

“… His attitude at the scene was obstructive, evasive and dishonest.  He had reversed his vehicle after the collision, prior to his initial story to PW2 [the first police officer at the scene] that there had been no collision.  He had lied to PW2 about having no passengers.  This lie was collateral to the issues and did not go to prove his guilt; but it did undermine his credibility.  He had told a variety of stories to the police.”

6.I might add that in his submissions before me today, the appellant gave a third version of events involving him apparently fainting at about the time of the collision so that he was unaware of details such as whether he had been carrying passengers when the collision occurred.

7.Having rejected the appellant as being unworthy of any credit, that left the magistrate with the prosecution evidence.  That was the evidence of the two police officers who attended the scene as to what they saw concerning damage to the two taxis.  The magistrate also had photographs subsequently taken by the appellant of damage to his taxi.

8.From all that evidence it was plain that whilst there was notable damage to the front of the appellant’s taxi and the rear of the other taxi, there was no corresponding damage to the rear of the appellant’s taxi.  The only apparent damage to the appellant’s taxi shown in the photographs produced by him shows damage to the rear left side of his vehicle.  That damage is inconsistent with his taxi being forced forward into the rear of the other taxi.  There was no independent evidence as to when the damage photographed on the side of the appellant’s taxi occurred and whether or not it predated the collision.

9.Perhaps more importantly, the magistrate accepted the police evidence that the appellant admitted eventually to the chief traffic officer at the scene that there had been no third vehicle involved in the collision.

10.The magistrate, on all the evidence before him, was entitled to come to the conclusion that no third vehicle had been involved in the collision, and that the appellant had initially misled the first police officer who attended the scene of the collision.

11.Findings of fact by magistrates are to be deferred to by appellate courts unless they are plainly wrong.  If those findings of fact are founded rationally upon credible evidence accepted by the magistrate than it would be rare for an appellate court to interfere.

12.In the present case, the magistrate was entitled to reject the evidence of the appellant and rely upon the evidence of the prosecution witnesses.  His findings are supported by and are rationally based upon the evidence he accepted.  In arriving at his findings, he properly took into account the photographs produced by the appellant.

13.There is no merit to the appellant’s grounds of appeal.  The conviction was fairly and sufficiently grounded on the evidence before the magistrate and the appeal is dismissed.

Ms Anna Y.K. Lai, SGC of the Department of Justice, for HKSAR

Appellant in person