The Queen v. Leung Sa Kin

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 231 OF 1987

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BETWEEN

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Coram: Hon. Garcia, J. in Court

Date of hearing : 9th April 1987

Date of delivery of judgment : 9th April 1987

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J U D G M E N T

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1. The appellant was summonsed for careless driving on 5th November 1986. He pleaded not guilty to the offence but after trial on 20th February 1987, was convicted and fined $750.

2. He now appeals against conviction.

3. On 19th August 1986 at about 9 a.m., a police constable was riding a-motorcycle at a speed about 10 m.p.h. on duty in the nearside lane along Connaught Road West going eastward. He saw the appellant's goods vehicle travelling at about 8 - 10 m.p.h. in the same direction on the offside lane.  In his evidence the constable states that when he arrived at the junction of Connaught Road West and Des Voeux Road West, two private cars which were travelling in front of him stopped at the traffic lights but the appellant's vehicle continued to move when about 10' from the lights and did not stop at the red light then showing. Two pedestrians who were then crossing the road going North along the junction had to run ahead in order to avoid the appellant's vehicle.

4. He says that he then chased after the appellant, stopped him and informed him that he would be charged with careless driving to which the appellant was alleged to have asked for a chance. The witness produced his sketch which is dated the 19th August 1986, showing the relative positions of the various vehicles at the time of the alleged offence, and three separate sets of lights governing traffic going Eastward from the junction of Des Voeux Road West and Connaught Road West, and these, in the course of the trial, were marked respectively A, B and C, B and C on either side of Connaught Road West junction and A some distance away from B and C, and facing Des Voeux Road West. All three sets of lights, according to the witness, changed colour simultaneously. Although one set of lights, that is the A set, faced traffic emerging from Des Voeux Road West going Eastwards, the witness maintains that the set governed traffic which was going East along Connaught Road West. He also stated that the traffic was not heavy at that time in the morning at 9 o'clock, and 19th August 1986 was a working day.

5. The appellant's evidence as to the state of traffic at that junction was quite different. He says it was busy and congested and traffic was going very slowly. There would have to be a reason for traffic moving along a major road at the speed of 8 - 10 m.p.h. and a reason would be the congested state of that road. He says when he arrived at the two sets of traffic lights governing traffic proceeding East along Connaught Road West, the red light turned green and as he moved forwards, the private car directly in front of him stopped, and he also stopped, twice in fact, as traffic in front was proceeding slowly, stopping and starting ,as it went ahead. He. Denied the allegations made against him by the police officer and stated that it was not possible that all three sets of lights would show the same colour simultaneously.  He explains this by stating that the traffic lights B and C, which were at the junction of Connaught Road West, controlled traffic travelling Eastwards along that road in order to proceed to Connaught Road Central, and the set of lights at A were there to control traffic proceeding Eastwards from Des Voeux Road West.  At that time, both the two lanes in Connaught Road West were congested and when the light at A showed red, both the lights at B and C showed green, and at the time of the police constable's observation, he was travelling in accordance with these two latter lights.

6. In my opinion, having the police constable's sketch in front of him, and considering the evidence in its totality, there should have appeared to the magistrate grave doubts either as to the unreliability or veracity of the police constable’s evidence regarding the status of the A set of lights when the B and C lights were green and also the traffic situation at 9 a.m. along that road on a working day as described by him, and the low speed of the traffic at the time he speaks of.

7. However, at the end of the case, the magistrate expressed himself in this way :-

"As is usually said by the High Court in cases of 1 against 1, its a matter of who do you believe having heard the both witnesses. In this case I find major contradictions in Defendant's evidence, and I believe PW1 and convict as charge."

8. It might well be that the magistrate perceives that the consideration of evidence in any case where there are only one witness for the prosecution and one for the defence to be a simple matter of believing one or the other, but certainly in the present case, there was a need to analyse the evidence in order to do even the most elementary justice to the appellant.

9. This appeal, however, is mainly grounded on the approach made by the magistrate, that is, after deciding that he could not believe the appellant's evidence because of major contradictions, he accepted the evidence given by the police constable.

10. This approach is clearly wrong in principle, depending as it were on a consideration of the evidence of the appellant before coming to the conclusion that the evidence of the prosecution should be accepted. It was held in Chan Wing-yuen v. R.(1) that in deciding whether a charge has been proved beyond reasonable doubt, it is wrong for a judge or magistrate to balance the defence and prosecution stories against each other, and to conclude that the case has been proved on the basis that the defence story must be rejected and then consequently the prosecution story must be accepted. The prosecution case must stand upon its own feet and should not be accepted merely because the defence story has been rejected.

11. In my judgment, this conviction cannot stand. I allow the appeal and the fine of $750, if paid, is to be returned to the appellant.

Mr McCoy for Crown

Mr Delaney (So & Karbhari) for appellant

(1) (1977) H.K.L.R. p.186