HKSAR v. Lo Hing Kit

FAMC No. 43 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 147 OF 2006)

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Between

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Appeal Committee : Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing : 23 October 2006

Date of Determination : 23 October 2006

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D E T E R M I N A T I O N

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Chief Justice Li:

1.On 9 December 2005, the applicant was convicted after trial by the magistrate (Ms L K Loh) of doing an act tending and intended to pervert the course of public justice.  The act in question was that he had knowingly made a false representation to a police officer that he was the driver of a private car involved in a traffic accident.  He was sentenced to four months imprisonment.  On appeal, Nguyen J dismissed the appeal against conviction but allowed the appeal against sentence, substituting the custodial sentence with 40 hours of community service.

2.The prosecution’s case rested on the evidence of Mr Yuen Tsz Kit, an independent witness (PW1) and that of a police officer (PW2).  On 13 March 2005 at about 00.30 hours, PW1 was sitting near the scene when he heard a loud bang and shortly afterwards, the car passed by slowly and stopped.  Smoke was coming from the car and its left front was damaged.  PW1 saw that the driver was a male foreigner and the passenger was a Chinese female.  They got out of the car and the female made a telephone call.  Shortly after, the applicant arrived and had a conversation with the driver.  Later, the foreigner and the female left the scene leaving the applicant with the car and its keys.

3.PW2, the police officer, then arrived at the scene.  PW1 heard the applicant say, “I am (the) driver” when questioned by PW2.  The applicant explained to PW2 how the accident happened; that the left wheel of the car had rammed into a safety island.  PW1 later told PW2 what he had seen and that he had heard that the applicant had claimed himself to be the driver to PW2.  When confronted by PW2, the applicant replied “That’s correct; the one who crashed the car was not me” and “I only came here to tow the car away for somebody”.  He also explained that he had misunderstood what PW2 referred to when questioning him.

4.The applicant elected to give evidence and called Mr Williams (DW2) as his witness.  Mr Williams was the driver at the time of the accident.  As is accepted by the applicant, it was common ground that the applicant had responded to PW2’s enquiry shortly after his arrival with the words “I am (the) driver”.  The applicant’s case was that he had misunderstood PW2’s question and that he meant that he was the driver at the time of PW2’s question, not at the time of the accident.  The crucial issue was whether the magistrate was satisfied beyond reasonable doubt that the applicant was claiming to be the driver at the time of the accident.  The magistrate was so satisfied.

5.In seeking leave to appeal on the substantial and grave injustice limb, the applicant submits that the magistrate had fallen into error, such as in failing to find that the evidence of the prosecution witnesses was insufficient and that it contained discrepancies and inconsistencies; in relying on demeanour in assessing credibility; in ignoring the inherent improbabilities; in introducing her own standards of what a person should or ought to have said in similar circumstances and in relying on peripheral and inconclusive aspects of the evidence.  These matters had been fully ventilated before Nguyen J.  He held that the findings of the magistrate were not unsafe and unsatisfactory and dismissed the appeal against conviction.  The applicant submits that the judge should have quashed the conviction.

6.The case was not a complicated one.  The magistrate had fairly assessed the evidence in deciding to convict.  The matters relied on do not give rise to an arguable case that there has been such a departure from accepted norms as to justify the grant of leave on the substantial and grave injustice limb.  Accordingly, the application for leave is dismissed.

Mr Toby R W Jenkyn-Jones (instructed by Messrs Kitty So & Tong) for the applicant

Mr Simon Tam (of the Department of Justice) for the respondent