HKSAR v. Ying Ho Wan

HCMA 983/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 983 OF 2005

(ON APPEAL FROM KCS 10895 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  23 February 2006

Date of Judgment:  23 February 2006

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J U D G M E N T

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1.This is an appeal against a conviction for careless driving.  The issue was who moved into the middle lane on a three-lane road.  The magistrate resolved that issue against the appellant and he relied heavily upon the fact that a sketch made by a police officer, showing the positions of the vehicles after the accident, had the appellant’s vehicle straddling the line between the second and the third lane which, of course, supported what PW1, the taxi-driver, had said about him coming from that lane. 

2.The appellant’s case was he had been all along in the middle lane.  That sketch, therefore, was a crucial piece of evidence.  What Mr Grounds has been able to demonstrate by reference to a full transcript I have is that that sketch got into evidence by no admissible route.  The officer who made it was not called to give evidence.  It was merely handed in at the beginning of the case with the prosecutor saying he understood there to be no dispute about it. 

3.The magistrate was handed three documents.  There were two sketches and some photographs and, explaining the procedure as he did to the appellant, he then stood the appellant up and said, he was going to go through those items I had received, to make sure the appellant understood them and to see whether there was going to be any dispute.

4.What happened was, he dealt with the photographs; he dealt with the sketch that did not show the location of the vehicles but the crucial sketch, he never dealt with.  He was diverted because there was a conversation about whether or not English or Cantonese should be used and he did not revert to what he had been doing.  It is thus clear that there was no formal admission under section 65(c) of the Criminal Procedure Ordinance which admitted  that sketch into evidence. 

5.Accordingly, the conviction cannot stand because it was, as I said, a crucial piece of evidence.  It is right to point out as well that the magistrate had told the appellant at the trial that he would decide the case entirely on the evidence that came from the witness-box.  One can see just why he said that at the stage of the proceedings he did.  Also, it is right that, at the end of his evidence below, the appellant when asked whether he wanted any other evidence called, made the point that he was not able to question the police officers.  Those facts reinforce the importance of the matter as it turned out below. 

6.The live issue on this appeal really was whether the case should be sent back for a retrial and I was minded to send it back to the magistrate in question so he could have the officer called to let there be cross-examination as to the sketch.  However, Mr Grounds has persuaded me that such would be an onerous course in the circumstances and Mr Lee, for the respondent, agrees with him.  They have made me change my view and in view of the nature of the charge, the fact that expense has been incurred by the appellant in coming here and putting matters right, and the fact that he has decided, in those circumstances, if the matter is not to go for retrial, that he does not want to ask for his costs, I think justice will be done if I merely quash the conviction and make no further orders. 

Mr Lee Ka-yun Kelvin, Government Counsel, of the Department of Justice, for the Respondent

Mr Christopher Grounds, instructed by Messrs Foo, Leung & Yeung, for the Appellant