Lau Kam Kak v. The Queen

CACC000554/1979

Coram: Li, J. in Court

Date of Judgment: 4 July 1979

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JUDGMENT

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1. The appellant was convicted of the offence of dangerous driving and that of being the taxi-driver did behave other than in a civil and orderly manner. For the 1st offence he was fined $400 and the cancellation of his driving licence for all vehicles for 3 months. For the 2nd offence he was fined $300. The facts leading to this case are comparatively simple. On the 1st January at about 9.10 p.m. one Mak Yuk-kwan boarded the appellant's taxi to go to Sai Kung. The appellant demanded an extra payment of $10. On being asked why by Mak Yuk-kwan the appellant turned abusive and used foul language from time to time throughout the journey. On arrival at the destination Madam Mak refused to pay anything extra over the charge shown on the metre. The appellant was annoyed. After Madam Mak alighted from the taxi the appellant drove his taxi so quickly and so near her that the taxi broke the wine bottle that was in the hand of Madam Mak.

2. The defence evidence was a completely conflicting story. The appellant said that after Madam Mak boarded the taxi he drove along. In the course of the journey the appellant failed to change gear of the taxi on going up an incline. The taxi jerked. Madam Mak, became abusive. On arrival at destination Madam Mak refused to pay for the taxi fare, called for her husband who came out from the village with a knife in his hand. The husband of Madam Mak became very abusive, scratched the back of the taxi and stabbed at the rear lamp of the taxi. The appellant was scared and drove off very quickly.

3. Such are the simple facts heard by the learned magistrate in the court below. In his Statement of Findings, having related the evidence before him, the learned magistrate said:-

"Having heard the evidence I was in no doubt that the appellant was lying and P.W.1's (which he meant Madam Mak's) version of the events was substantially truthful."

4. The appellant appeals against this conviction as well as sentence. At the commencement of this appeal counsel for the appellant applied for leave, which was granted, to abandon the appeal against sentence. The ground of appeal against conviction is that there is no evidence or no sufficient evidence thereon to found the said conviction. It is said that from the passage that I have just recited from the Statement of Findings the learned magistrate having failed to remind myself of the burden of proof and that he was comparing the evidence for the defence and that of the appellant, the only prosecution witness. The case of Khou Kwok-wai v The Queen in Criminal Appeal No. 91 of 1977 was cited to me. That was a case before my brother Leonard. In that appeal he critised the magistrate's Statement of Findings which reads:-

5. In that case my brother Leonard cited a series of cases which established the following propositions. First of all the judge who approached the question of guilt or innocence on the sole basis of deciding which of the two stories he should believe erred. Secondly, the fact that he, the magistrate, disbelieved the evidence for the defence did not necessarily mean that he had to believe the evidence for the prosecution. It is wrong for the magistrate to say

"it is therefore for me to say whose story he should believe."

Having compared the present case with the cases that have established these propositions of law which are irrefutable I find that there is a material difference. In all the cases cited including the case of Khou Kwok-wai there was genuinely a matter of comparison that the learned magistrate had to choose between the prosecution evidence and the defence evidence. Indeed, it is quite correct to say that the fact that the learned magistrate disbelieved the defence evidence does not necessarily mean that he must believe the evidence of the prosecution witnesses. In the present case the learned magistrate said:-

"Having heard the evidence I was in no doubt that appellant was lying and P.W. 's version of the events was substantially truthful."

In other words, the learned magistrate not only rejected the evidence for the defence as lies but also accepted the prosecution evidence as truthful. The failure to spell out the burden of proof is not fatal. It is not in every case the judge or magistrate must in his judgment refer himself to the burden of proof. A judge or magistrate sitting alone should know and would have known what he is doing unless there is some record on the face of it that he has forgotten it or showed that he has forgotten where the burden of proof laid. Admittedly it would be better if the learned magistrate be more explicit in his findings. But this is a case in which the evidence is relatively simple.

6. Having considered the transcript of the evidence I find that the prosecution witness' evidence was not substantially challenged in cross-examination. For that matter I read the cross-examination of the prosecution witness. The questions which put to her were:-

This is the sum total of the questions put to the prosecution witness despite the fact that she gave a detailed account of what happened in the course of her journey and at the destination.

7. Having regard to the evidence as a whole it is not surprising that the learned magistrate would refer only to the evidence and commented on the evidence simply with the words that he found the prosecution witness' version of the event was substantially truthful. For these reasons I see no reason to infer with the verdict and the appeal against conviction is accordingly dismissed.

Representation:

Midgley (Haldane & Co.,) for appellant

Murphy for respondent