HKSAR v. Fong E-fong Candy

HCMA793/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.793 OF 2006

(ON APPEAL FROM ESS 29610-12 OF 2006)

---------------------

BETWEEN

----------------------

Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 22 September 2006

Date of Judgment : 22 September 2006

Date of Handing Down Reasons for Judgment : 27 September 2006

-------------------------------------------------------

REASONS  FOR  JUDGMENT

 -------------------------------------------------------

1.The appellant was convicted after trial of one charge of ‘Disobeying road marking’, contrary to Reg. 59(1)(b) and 61(1) of the Road Traffic (Traffic Control) Regulations made under Road Traffic Ordinance, Cap. 374; one charge of ‘Failing to stop a vehicle on being so required by a uniform police officer’, contrary to s. 60 of the Road Traffic Ordinance Cap. 374; and one charge of Careless Driving, contrary to s. 38(1), Road Traffic Ordinance, Cap. 374.  On the three summonses she was fined a total of $3,800.  She appealed her convictions.  At the hearing I dismissed the appeal.  I now give my reasons.

2.At the material time the appellant was seen by a uniformed police officer, PW1, to have stopped her car on the left lane at the location particularized in the summons where there was double yellow line markings.  When being told of the contravention, the appellant turned on the engine, reversed her vehicle for some 2 to 3 metres and halted.  The same manoeuvre happened for a total of three times, during which PW1 had given her warnings and asked for her driving licence but to no avail.  During one such occasions of reversing, the offside rear of the appellant’s vehicle nearly collided with another oncoming vehicle on the second lane.  On the last occasion when the appellant braked the car jerked causing the offside front bumper to knock against PW1’s right knee, which in turn caused PW1 to fall and sit on the ground.  The incident was witnessed by two passers-by, who gave evidence as PW2 and PW3.

3.The appellant gave evidence.  She denied to have stopped her vehicle but said that she was just crawling or inching along taking a look at the shops.  PW1 accused her of blocking the traffic by moving at a slow speed.  As PW1 stood in front of her car blocking her way, she could only leave by reversing.  She did not hear any warnings from PW1 at all, she could not remember whether he asked for her driving licence, she did not hear PW1 asking her to stop whilst reversing.  She did not know why PW1 suddenly fall onto the ground.

Grounds of appeal

4.The appellant did not file any perfected grounds but advanced her grounds orally at the hearing of the appeal, which are summarized as follows :

(1) The magistrate erred in failing to deal with the discrepancy between PW1’s evidence that the appellant’s car jerked forward hitting against his knee and the admitted facts that “it is scientifically impossible for LG6766 to jerk forward 1 foot on a sudden stop after reversing…”

(2) The magistrate failed to consider the inherent improbability of the evidence of PW1 that the jerk of the vehicle was so forceful to cause him to lose his balance, and the medical report did not show any visible injuries of PW1.

(3) The magistrate failed to consider the demeanour of PW2 when she was giving evidence, that she was giggling and did not take the court proceedings seriously.

(4) The magistrate failed to consider inconsistencies between PW1 and PW3’s evidence, in particular, that PW3 testified that he saw PW1 wave at the appellant to stop but PW1 never mentioned the waving in his evidence.

Respondent’s reply

5.Counsel for the respondent submitted that the magistrate demonstrated in the Statement of Findings demonstrated that she was alive to the issue relating to the jerking forward of the appellant’s vehicle as alleged by PW1.  Paragraph 55 of the Statement of Findings states that :

“It is clear there is no direct evidence as to how the Appellant had had the private car moved one foot forward after stopping and hit PW1…”

Counsel also submitted that the magistrate analyzed the evidence of the prosecution witness and the appellant thoroughly and carefully.  She had borne in mind some inconsistencies in the evidence of PW1 and PW2.  She was entitled to find that such were not significant and did not affect their credibility.  She was also entitled to reject the appellant’s evidence for reasons given in paragraphs 53 and 54 of the Statement of Findings.  On those findings of facts, there was ample evidence to convict the appellant of the three summonses.

My judgment

6.This is a case which turns largely on credibility.  In judgment matters pertaining to credibility, the magistrate was in a better position : she heard and saw the witnesses.  The magistrate found that PW1 did not try to embellish or exaggerate his testimony.  She found the prosecution witnesses honest and credible.  On the other hand, she considered the appellant evasive and rejected her evidence as being self contradictory and illogical.

7.The appellant submitted that there were inconsistencies in the prosecution evidence which the magistrate had failed to deal with or resolve in the statement of findings.  She also complained that the magistrate failed to demonstrate in the Statement of Findings that she had taken into account the giggling and light-hearted demeanour of PW2.

8.O’Connor J said this in Lam Kam Ming and Anor v. R., CACC607/1989 :

“The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated.  Significantinconsistencies and conflicts should be dealt with in such manner as to indicate how those matters were resolved.  There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case.  The Magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty.”

9.A magistrate is not required to deal with or resolve each and every inconsistency.  The magistrate would have discharged her duties on demonstrating that she had evaluated the evidence and decided on matters that would enable her to say whether or not the charge against the appellant was proved.  The magistrate has borne in mind the evidence of PW1 and PW2 as to what happened between PW1 and the appellant was not exactly the same.  In any event, the so-called discrepancies raised by the appellant are not matters of material significance or would cast any doubt on the credibility of the prosecution witnesses that required to be resolved by the magistrate.

10.PW2 and PW3 were passers-by.  They had nothing to do with this case should they choose to, neither had they any interest to serve.  Yet both of them acted commendably by coming forward and giving evidence as independent witnesses.  The magistrate was entitled to find that she had “no doubt that PW2 remained impartial in giving her evidence in relating those events…”  PW2’s evidence lent support to PW1’s, in particular, that PW1 had repeatedly shouted at a more than audible voice to the appellant telling her not to leave, yet the appellant paid no heed and continued to reverse.  PW3’s evidence also supported that of PW1’s in that he witnessed PW1 signalling to the appellant.  The fact that PW3 saw PW1 waving but PW1 did not say such in his evidence is nothing of significance to render their evidence incredible.

11.To try to argue that under the circumstances as described, the appellant did not know that her driving licence was demanded for, and that she could freely reverse and leave as she pleased, was an unrealistic and futile exercise.

12.Much has been said about the evidence on the jerking forward of the appellant’s vehicle causing PW1 to lose his balance.  That was only part of a course of conduct which formed the basis of the careless driving charge.

13.There was ample evidence to convict the appellant on the three summonses.

14.This appeal is threadbare and devoid of merits.  I therefore dismissed the appeal and affirmed the convictions.

Mr Henry Hung, GC of the Department of Justice for the Respondent

The Appellant, in person